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INTRODUCTION 

TO 

POLITICAL    SCIENCE 


A   TREATISE   ON   THE   ORIGIN,   NATURE, 

FUNCTIONS,   AND    ORGANIZATION 

OF   THE   STATE 


BY 
JAMES  WILFORD  GARNER,  Ph.D. 

PROFESSOR  OF  POLITICAL  SCIENCE,   UNIVERSITY  OF  ILLINOIS 


NEW   YORK  •:•  CINCINNATI  •:•  CHICAGO 

AMERICAN    BOOK   COMPANY 


WiiMmm  ^xc\]iMti  Sunning 

A   NAME    HONORED    AMONG    SCHOLARS 


Copyright,  1910,  by  Jj\mes  Wilford  Garner. 
Entered  at  Stationers'  Hall,  London. 

W.  p.    6 


Ill 


PREFACE 

My  aim  in  the  preparation  of  this  work  has  been  to  provide  a  text- 
book for  students  which,  though  elementary,  shall  cover  a  wider  range 
of  topics  relating  to  the  state  than  is  usually  dealt  with  in  treatises 
designed  for  text-book  use.  With  this  end  in  view,  I  have  included 
chapters  on  the  nature,  scope,  and  methods  of  political  science;  on 
the  essential  constituent  elements  of  the  state  ;  on  the  functions  and 
sphere  of  the  state  ;  on  citizenship  and  nationality ;  on  constitutions 
—  their  nature,  sources,  and  kinds;  on  the  distribution  of  govern- 
mental powers ;  and  on  the  electorate.  I  make  no  pretension  to 
having  treated  the  subject  in  an  exhaustive  manner.  I  have  simply 
attempted  to  set  forth  in  an  elementary  way  the  more  important  theo- 
ries concerning  the  origin,  nature,  functions,  and  organization  of  the 
state,  and  to  analyze  and  criticise  them  in  the  light  of  the  best  scien- 
tific thought  and  practice. 

With  a  view  to  encouraging  students  to  read  as  widely  as  possible, 
I  have  placed  at  the  head  of  each  chapter  a  bibliography  of  the 
best  literature  in  English,  German,  French,  and  Italian,  dealing  with 
the  subject  treated  in  the  chapter,  and  have  cited  many  additional 
authorities  in  the  footnotes. 

Proofs  of  various  parts  of  the  book  have  been  read  by  university 
professors,  each  of  whom  is  an  authority  on  the  particular  subject 
dealt  with  in  the  chapter  submitted  to  him,  and  the  entire  work  has 
had  the  benefit  of  their  suggestions.  For  this  service  my  thanks  are 
due  to  Professors  J.  Q.  Dealey,  of  Brown  University ;  W.  F.  Dodd,  of 
Johns  Hopkins  University  ;  Blaine  F.  Moore,  of  the  University  of 
Michigan  ;  Paul  S.  Reinsch,  of  the  University  of  Wisconsin  ;  L.  S. 
Rowe,  of  the  University  of  Pennsylvania ;  Walter  J.  Shepard,  of  the 
University  of  Ohio ;  D.  Y.  Thomas,  of  the  University  of  Arkansas ; 
and  W.  W.  Willoughby,  of  Johns  Hopkins  University;  to  my  col- 
leagues. Professors  John  A.  Fairlie,  David  Kinley,  and  N.  A.  Weston, 
and  Messrs.  F.  C.  Becker  and  Thomas  Reed  Powell,  of  the  Univer- 
sity of  Illinois  ;  to  Mr,  Roy  E.  Curtis,  formerly  of  the  Wisconsin 
Legislative  Reference  Bureau ;  and  to  Mr.  H.  G.  James,  graduate 
student  in  the  University  of  Illinois  and  member  of  the  Illinois  bar. 

JAMES   W.   GARNER. 


Urbana,  Illinois. 


668446 


CONTENTS 


CHAPTER  PAGK 

I.  Political  Science    ....  7-37 

I.  Terminology  and  Distinc- 

tions           7 

II.  Definition  and  Scope  .     .       12 

III.  Is  there  a  Science  of  Gov- 

ernment?     16 

IV.  The  Methods  of  Political 

Science 19 

V.  Relation  of  Political  Sci- 

ence to  Other  Sciences .       30 

II.  The  Nature  of  the  State  38-65 

I.  Definitions   and    Distinc- 

tions   3^ 

II.  State    and    Nation;    the 

Principle  of  Nationality 
in  the  Organization  of 
States 45 

III.  The    Organic   Theory  of 

the  State 56 

III.  Essential     Elements     of 

THE    State      .    .    .     66-85 
I.   People 66 

II.  Territory 68 

III.  Government    and    Sover- 

eignty  79 

IV.  Other  Attribute!^  and  As- 

pects of  the  State     .     .       81 

IV.  The  Origin  of  the  State  86-122 
I.   Preliminary  Observations  .      86 

II.  The    Theory    of    Divine 

Origin 87 

III.  The  Compact  Theory  .    .      92 

IV.  Criticism  of  the  Compact 

Theory 108 

V.  The  Patriarchal  and  Ma- 
triarchal Theories     .     .  114 
vi.  The  Force  Theory   .     .     .  119 
VII.  The  Historical   or  Evolu- 
tion Theory    ....  120 


CHAPTER  PAGE 

V.  Forms  of  State  and  Asso- 

ciations OF  States  123-167 

I.  Principles   of  Classifica- 

tion        124 

^5jjl.    Monarchies,     Aristocra- 
cies, and  Democracies  125 

III.  Theocracies 128 

IV.  Other  Classifications  .     .  132 
V.   Simple    and    Composite 

States ;    Personal  and 

Real  Unions  ....  136 

VI.   Confederations      .     .     .  142 

VII.    Federal  Unions      .     .     .  148 

VIII.   Part-Sovereign  States     .  158 

IX.   Neutralized  States      .     .  163 

X.   International  Unions      .  165 

VI.  Forms  of  Government    168-204 

I.    Monarchies,     Aristocra- 
\  cies,  and  Democracies     169 

II.  Other       Classifications ; 

Cabinet  and  Presiden- 
tial Government     .     .     178 

III.  Unitary,     Federal,    and 

Confederate     Govern- 
ment     191 

IV.  Bureaucratic  versus  Pop- 

ular Government    .     .     197 
V.    Succession    of    Govern- 
mental Forms   .     .     .     200 

VII.  Forms     of     Government 

{Continued)     .     .       205-236 
■^I.    Monarchical  Government     205 
■^  II.   Aristocratic  Government     210 
-■-,111.   Democratic    or   Popular 

Government ....     219 
rv.   Federal  Government .     .     230 . 
V.  The  Test  of  a  Good  Gov- 
ernment     ^235 


CONTENTS 


CHAPTER  PACK 

VIII.  SoVEREIG>fTY    .      .      .         237-272 

I.  Definitions  and  Distinc- 
tions ;  Legal  versus 
Political  Sovereignty ; 
De  Facto  versus  De 
Jure  Sovereignty  .  .  238 
II.  The  Attributes  of  Sov- 
ereignty     248 

III.  The  Absolutism  of  Sov- 

ereignty ;     Theory   of 
Limitations    ....     250 

IV.  The  Indivisibility  of  Sov- 

ereignty     257 

V.    Internal  versus  External 

Sovereignty  ....     264 
VI.    Is  Sovereignty  an  Essen- 
tial   Element    of    the 

State  ? 265 

VII.   Austin's  Theory  of  Sov- 
ereignty     268 

IX.  Theories  of   State   Func- 

tions        273-310 

I.  The     Individualistic    or 

Laissez-faire  Theory  .     274 
II.    Defense  of  the  Laissez- 
faire  Theory ....     282 

III.  Criticism  of  the  Laissez- 

faire  Theory ....     289 

IV.  The  Socialistic  Theory    .     298 

X.  The  True   Sphere  of  the 

State      ....      311-329 
I.  The  Ends  or  Purposes  of 

the  State 31 1 

II.   Classification     of     State 

Functions      .     .     .     .     318 
III.   Observations    and    Con- 
clusions      320 

XI.  Citizenship    and    Nation- 

ality        330-372 

I.   Terminology    and    Dis- 
tinctions   330 

II.   The  Acquisition  of  Citi- 
zenship      333 

III.   The  American  and  Eng- 
lish Rule 337 


CHAPTER  PAGE 

IV.  Citizenship     by     Direct 

Grant  or  Conferment; 
Naturalization  .     .     .     341 
V.   Other  Modes  of  Acquir- 
ing Citizenship  .     .     .     349 
VI.    Citizenship  in  a  Federal 

State 352 

VII.    I-oss  of  Citizenship     .     .     358 
VIII.    What   constitutes   Expa- 
triation?     363 

IX.   The  Status  of  Aliens       .     365 

XII.  The  Constitution  of  the 

State      ....      373-406 
I.    Definitions  and  Distinc- 
tions      373 

II.   Classification   of  Consti- 
tutions        377 

III.  Anglo-American         and 

French     Types     Con- 
trasted        382 

IV.  Written    and    Unwritten 

Constitutions      .     .     .     388 

V.  Merits  and   Demerits  of 

Each  Type     ....     392 
VI.    Essentials   of  a  Written 

Constitution  ....     397 
VII.   Development    and     Ex- 
pansion of  the  Consti- 
tution   402 

XIII.  The  Distribution  of  the 

Powers     of     Govern- 
ment        407-426 

I.   The  Theory  of  the  Sepa- 
ration of  Powers     .     .     407 
II.    Limitations  of  the  Theory     417 

XIV.  The  Legislative  Depart- 

ment        427-488 

I.    Organization  :    the  Uni- 
cameral versus  the  Bi- 
cameral Principle   .     .     427 
II.    Methods   of  Apportion- 
ment      440 

III.  Method  of  Choice       .     .     442 

IV.  Direct    versus    Indirect 

Election 447 


CONTENTS 


CHAPTER  PAGE 

V.   Qualifications  and  Term 

of  the  Representative      451 
VI.    Representation    of    Mi- 
norities      458 

VII.    Representation  of  Inter- 
ests   469 

VIII.  Beginnings  of  the  Rep- 
resentative System  : 
Early  Ideas  ....  474 
IX.  The  Modern  Idea  (.if  Rep- 
resentation; Instructed 
versus       Uninstructed 


Representation 


XV.    The  Electorate  .     . 
I.   Theories  of  Suffrage 
II.    Universal  Suffrage 
III.    Woman  Suffrage    , 


478 

489 
502 
508 


XVI.    The    Executive    Depart- 
ment        517-570 


I.    Principle    of    Organiza- 
tion ;      Plural     versus 
Single  Executives.     .     517 
II.   Mode  of  Choice  of  the 

Executive      ....     527 

III.  The  Term  of  the  Execu- 

tive        537 

IV.  The  Executive  Power     .     546 

V.  Relation  of  the  Executive 

to  the  Legislature  and 

to  the  Judiciary      .     .     558 

XVII.    The  Jcdiciary  .     .       571-606 
I.    Independence  of  the  Ju- 
diciary        571 

II.    Judicial  Organization      .     580 

III.  Administrative       Courts 

and        Administrative 
Jurisdiction   ....     585 

IV.  Power   of  the  Judiciary 

over  the  Acts  of  the 
Legislature    ....     594 


Index 607-616 


CHAPTER   I 

POLITICAL  SCIENCE 

Suggested  Readings:  Amos,  "Science  of  Politics,"  chs.  i  and  2; 
Bluntschli,  "  Allgemeine  Staatslehre,"  translated  into  English  under 
the  title  "Theory  of  the  State,"  Introduction  and  ch.  i;  also  his 
"Politik,"  bk.  I,  ch.  i;  Bornhak,  "  AUgemeine  Staatslehre,"  pp.  1-8  ; 
Calker,  "  PoUtik  als  Wissenschaft  ;"  De  Parieu,  "Principes  de  la 
Science  politique,"  Introduction;  Funck-Brentano,  "La  PoHtique," 
ch.  I  ;  GuMPLOWicz,  "  Allgemeines  Staatsrecht,"  pp.  1-13  ;  Held, 
"  Staatsrecht,"  pp.  1-21;  Holtzendorff,  "Principien  der  Politik," 
bk.  I,  chs.  I  and  2;  Huhn,  "PoHtik,"  pp.  9-21 ;  Janet,  "Histoire  de  la 
Science  politique,"  vol.  I,  Introduction;  Jellinek,  "Recht  des  mod- 
ernen  Staates,"  bk.  I,  chs.  i  and  2;  Lewis,  "Methods  of  Observation 
and  Reasoning  in  Politics,"  vol.  I,  chs.  2-6;  McKechnie,  "The  State 
and  the  Individual,"  Introduction;  Mill,  "System  of  Logic,"  bk.  VI, 
chs.  6-10;  Von  Mohl,  "  Encyklopadie  der  Staatswissenschaften,"  sec. 
X;  Pollock,  "History of  the  Science  of  Politics,"  ch.  i ;  Ratzenhofer, 
"Wesen  und  Zweck  der  PoHtik,"  pp.  26-30;  Rehm,  "AUgemeine 
Staatslehre,"  in  Marquardsen's  "  HandbuchdesoffentUchenRechts," 
Einleitungsband,  II,  pp.  i-io;  Rowe,  "Problems of  Political  Science," 
"Annals  of  the  American  Academy  of  Political  and  Social  Science," 
vol.  X,  pp.  165-186;  Schmidt,  "  AUgemeine  Staatslehre,"  vol.  I, 
pp.  1-33;  Schmidt,  "  Grundziige  der  praktischen  Politik,"  pp.  i-io; 
Seeley,  "Introduction  to  Political  Science,"  lect.  I;  Sidgwick,  "Ele- 
ments of  Politics,"  ch.  i;  Munroe  Smith,  "The  Domain  of  Political 
Science,"  "Political  Science  Quarterly,"  vol.  I,  pp.  1-9;  Walcker, 
"  PoUtik  der  constitutionellen  Staaten,"  ch.  i ;  Walter,  "  Naturrecht 
und  Politik,"  pp.  1-20;  Willoughby,  "Political  Philosophy," 
"  South  Atlantic  Quarterly,"  vol.  V,  pp.  161  et  seq.;  also,  "The  Value 
of  Political  Philosophy,"  by  the  same  author,  "  Political  Science 
Quarterly,"  March,  1900;  Woolsey,  "Political  Science,"  vol.  I,  pt. 
II,  ch.  i;  Zacharia,  "  Vierzig  Bucher  vom  Staate,"  vol.  I,  bk.  6. 
sees.  I  and  2. 

I.     TERMINOLOGY  AND   DISTINCTIONS 

There  is  as  yet  no  commonly  accepted  term  by  which  The  Term 
the  science  of  government  may  be  designated.     The  term  ^^°n~ 
"politics"  (from  Tro'Xi?,  iroXLTeCa),  employed  by  many  writers, 

7 


8 


POLITICAL   SCIENCE 


Theoreti- 
cal and 
Practical 
Politics 


is  open  to  the  objection  that  it  possesses  several  meanings 
and,  when  used  without  quaHfication  or  discrimination, 
leads  to  confusion  if  not  misunderstanding/  According  to 
popular  usage  it  is  a  term  of  both  a  science  and  an  art,  that 
is,  it  is  employed  to  denote  both  the  systematic  study  of 
the  phenomena  of  the  state  and  the  totality  of  activities 
which  have  to  do  with  the  administration  of  the  affairs  of 
state.  As  a  science  it  furnishes  us  with  a  mass  of  theo- 
retical knowledge  concerning  the  state;  as  an  art  it  seeks 
solutions  of  concrete  problems  and  is  concerned  with  the 
processes  and  means  by  which  government  is  actually 
carried  on  and  the  ends  of  the  state  are  realized.^  In  a 
narrow  and  somewhat  partisan  sense  the  term  is  applied 
to  electioneering  methods  by  which  public  officials  are 
chosen  and  political  policies  promoted.' 

"Theoretical"  politics  is  sometimes  distinguished  from 
"practical"  or  "applied"  poHtics,  the  former  being  con- 

^  Jellinek  has  well  remarked  that  there  is  no  science  which  is  so  much  in  need  of  a 
good  terminology  as  is  political  science.     "Recht  des  modernen  Staates,"  p.  129. 

^  Some  writers  maintain  that  "politics"  as  a  science  is  concerned  with  that  which 
is  rather  than  that  which  ought  to  he,  that  its  sphere  is  the  present  and  the  past ; 
while  as  an  art  it  looks  to  the  future  and  aims  at  that  which  ought  to  be  in  the  govern- 
ment of  communities.  See,  e.g.,  Jellinek,  op.  cit.  p.  13.  For  further  discussion  of 
the  distinction  between  politics  as  an  art  {Staats praxis,  Staatskunst)  and  politics  as 
a  science  {Staatswissenschaft,  Staatslehre)  see  Bluntschli,  "Politik  "  (vol.  Ill  of  his 
"Lehre  vom  modernen  Staat.")  pp.  1-6;  Holtzendorff,  "Principien  der  Politik," 
chs.  2  and  3;  Von  Mohl,  "  Encyklopadie  der  Staatswissenschaften,"  p.  543;  Funck- 
Brentano,  "La  Politique,"  pp.  38-48;  Rehm,  "  Allgemeine  Staatslehre,"  pp.  9-10  ; 
Schmidt,  "  Grundziige  der  praktischen  Politik,"  pp.  1-3 ;  Walcker,  "  Politik  der 
constitutionellen  Staaten,"  p.  4;  and  Zacharia,  "Vierzig  Biicher  vom  Staate," 
vol.  I,  p.  169. 

^  The  term  was  employed  as  an  art  in  its  widest  sense  by  Bluntschli  when  he  said 
"politics"  {Politik)  is  concerned  with  the  whole  conscious  life  of  the  state  and  the 
guidance  of  its  affairs.  The  term  is  employed  as  that  of  a  science  by  such  writers 
as  Holtzendorff  in  his  "Principien  der  PoHtik,"  by  Froebel  in  his  "Theorie  der 
Politik,"  by  Dahlman  in  his  "  Politik,"  by  Huhn  in  his  "  Politik,"  by  Waitz  in 
his  "Grundziige  der  Politik,"  and  by  many  others.  A  singular  use  of  the  term 
"politics"  is  made  by  Goodnow  in  his  work  entitled  "Politics  and  Administration," 
where  it  is  employed  to  denote  the  activities  of  the  state  which  have  to  do  with  the 
expression  of  the  state  will,  in  contradistinction  to  the  term  "administration,"  which 
is  concerned  with  the  execution  of  the  state  will. 


TERMINOLOGY   AND   DISTINCTIONS  9 

cerned  with  the  fundamental  characteristics  of  the  state 
without  reference  to  its  activities  or  the  means  by  which 
its  ends  are  attained;  the  latter,  with  the  state  in  action, 
that  is,  as  a  dynamic  institution/  Thus  everything  that 
relates  to  the  origin,  nature,  attributes,  and  ends  of  the 
state,  including  the  principles  of  political  organization  and 
administration,  falls  within  the  domain  of  "theoretical" 
politics,  while  that  which  is  concerned  with  the  actual 
administration  of  the  affairs  of  government  belongs  to  the 
sphere  of  "applied"  or  "practical"  politics.  The  majority 
of  writers  to-day,  however,  prefer  the  term  "political 
science"  instead  of  "theoretical"  politics;  and  the  simple 
term  "poHtics,"  instead  of  "applied"  or  "practical" 
politics.  Some  writers  employ  the  term  "science  of  poli- 
tics," ^others,  the  "theory  of  the  state,"  the  Staatslehre  of 
the  Germans,  because,  as  one  author  remarks,  "it  gives  a 
clearer  idea  of  the  wide  nature  of  the  field  of  inquiry"  and 
at  the  same  time  "avoids  the  necessity  of  a  delicate  and 
intricate  discussion  as  to  whether  the  study  of  politics  is 

^  The  distinction  between  "theoretical"  and  "applied"  poHtics  has  been  observed 
by  Jellinek,  Holtzendorff,  Janet,  Cornewall  Lewis,  Alexander  Bain,  Sir  Frederick 
Pollock  and  others.  See,  for  example.  Pollock,  "History  of  the  Science  of  Politics," 
pp.  94-95,  for  the  following  conzparative  outline  (abridged) : 

Theoretical  Politics.  Applied  Politics. 

A.  Theory  of  the  state  (origin,  classifica-     A.   The  state  (existing  forms). 

tion, forms,  sovereignty). 

B.  Theory  of  government  (institutions,     B.    Government  (constitutional  law  and 

departments,  order,  defense,  tax-  usage,      parliamentary      systems, 

ation,  positive  law).  army    and    navy,    currency   and 

trade). 

C.  Theory  of  legislation  (objects,  gen-     C.    Laws    and     legislation     (procedure, 

eral   jurisprudence,    method   and  laws,  courts,  precedents,  etc), 

sanction,    interpretation    and  ad- 
ministration). 

D.  Theory  of  the  state  as  an  artificial     D.   The   state    personified    (diplomacy, 

person     (corporations,      interna-  peace   and  war,  treaties,   conven- 

tional law).  tions,  etc.) 

*  For  example,  Amos,  Bagehot  and  Pollock. 


lO 


POLITICAL   SCIENCE 


The  Term 
'Political 
Science" 


a  science  or  a  philosophy."  *  In  spite  of  all  objections, 
however,  the  term  ''political  science"  {Staatswissenschaft, 
science  politique,  scienza  politico)  has  come  to  be  more 
generally  employed  by  the  best  writers  and  thinkers  to 
describe  the  mass  of  knowledge  derived  from  the  system- 
atic study  of  the  state,  while  the  meaning  of  the  term 
"politics"  is  confined  to  that  of  the  business  or  activity 
which  has  to  do  with  the  actual  conduct  of  affairs  of 
state. ^ 

Against  the  term  "political  science"  the  objection  has 
been  urged  that  it  does  not  correspond  with  the  facts,  since 
there  is  no  single  science  dealing  with  the  state,  but  rather 
a  group  of  related  sciences,  each  concerned  with  particular 
aspects  of  it.  Thus,  it  is  said,  the  modern  state  presents 
itself  under  divers  aspects  and  is  capable  of  being  studied 
from  many  different  points  of  view.  The  mass  of  knowl- 
edge relating  to  each  phase  or  aspect  of  the  state  has  de- 
veloped a  history  and  a  dogma  of  its  own  quite  distinct 
from  the  rest.  The  phenomena  of  each  have  become  so 
numerous  and  complex  as  to  create  a  necessity  for  special 
treatment  by  the  investigator.  Thus  the  tendency  has 
been  to  group  them  into  separate  categories  and  treat 
them  as  distinct  sciences.^  The  plural  form,  the  "political 
sciences,"  therefore  seems  to  correspond  more  nearly  with 
the  facts  and  is  preferred  by  many  writers,  especially  the 


*  McKechnie  defends  the  use  of  this  term.  He  criticises  the  use  of  the  term 
"political  science"  for  the  reason  that  it  "often  conveys  the  idea  that  it  is  merely 
a  study  to  be  entered  upon  as  a  means  to  party  ends,  not  as  a  resolute  endeavor  to 
find  truth  for  its  own  sake."  The  term  "science  of  politics"  he  finds  equally 
objectionable  for  the  reason  that  the  term  "science"  is  associated  with  logical  and 
rigorous  methods  of  investigation  and  experiment  applied  to  such  objects  as  they 
are  adapted  to,  while  the  word  "politics"  is  associated  with  all  that  is  changeable 
and  contingent  in  the  affairs  of  a  nation,  rather  than  with  the  principles  of  absolute 
and  universal  truth.     "The  State  and  the  Individual,"  pp.  28-30. 

*  On  the  use  of  technical  terms  in  political  science  see  Lewis,  "Methods  of  Ob- 
servation and  Reasoning  in  Politics,"  vol.  I,  ch.  4. 

^Compare  on  this  point  Dunning,  "Political  Theories,  Ancient  and  Medieval," 
p.  XXI,  and  Giddings,  "Principles  of  Sociology,"  ch.  II. 


TERMINOLOGY   AND    DISTINCTIONS  1 1 

French,    who  commonly  speak  of   the  sciences  morales  et 
politiques} 

According  to  the  latter  view  a  political  science  is  one  The 
which  is  concerned,  not  necessarily  with  the  state  in  all  science?' 
of  its  aspects  or  relations,  but  with  any  particular  phe- 
nomenon of  the  state  or  any  class  of  phenomena  either 
as  a  whole  or  incidentally,  directly  or  indirectly.  Thus 
there  may  be  as  many  political  sciences  as  there  are  con- 
ceivable aspects  or  forms  of  manifestation  of  the  state. 
In  this  sense  sociology,  political  economy,  public  finance, 
public  law,  diplomacy,  constitutional  history,  may  be 
denominated  political  sciences,  since  they  all  deal  either 
primarily  or  incidentally  with  some  class  of  phenomena 
belonging  to  the  state. ^  Those  who  maintain  that  the 
singular  form  accords  more  nearly  with  the  facts  argue  that 
in  reality  the  above-mentioned  sciences  are  rather  coordi- 
nate social  sciences  than  independent  political  sciences. 
Thus,  says  one  writer,  in  support  of  this  view,  "The  various 
relations  in  which  the  state  may  be  conceived  may  be  sub- 
divided and  treated  separately,  but  their  connection  is  too 
intimate  and  their  purpose  too  similar  to  justify  their 
erection  into  different  sciences."  ^  Without  attempting  to 
pass  judgment  upon  the  respective  merits  of  the  two  views, 

'  Among  those  who  have  defended  the  plural  term  may  be  mentioned  Von  Mohl, 
Holtzendorff,  Lewis,  Dunning,  and  Giddings.  Von  Mohl,  in  his  "Geschichte  und 
Litteratur  der  Staatswissenschaften, "  published  in  1855,  vol.  i,  p.  126,  classified 
the  "political  sciences"  (i)  as  general  political  theory  (Allgemeine  Staatslehre);  (2) 
as  the  dogmatic  political  sciences,  including  public  law,  political  ethics,  and  the  art 
of  politics  (Staatskunst),  including  diplomacy,  administration,  etc.;  and  (3)  as  the 
historical  political  sciences,  including  constitutional  history  and  statistics.  Von 
Mohl's  classification  was  adopted  in  substance  by  Franz  Holtzendorff  twenty  years 
later  in  his  "  Principien  der  Politik"  (pp.  4-6).  A  recent  attempt  to  classify  the 
"political  sciences"  has  been  made  by  Von  Mayr  in  his  "Begrift"  und  Gliederung 
der  Staatswissenschaften"  (1906). 

^  Giddings  even  enumerates  philosophy  as  one  of  the  "political  sciences, "  o/>.  cit., 
p.  27.  See  also  his  "  Province  of  Sociology,"  in  the  "  Annals  of  the  American  Acad- 
emy of  Political  and  Social  Science,"  vol.  I,  p.  66. 

*  Munroe  Smith,  "The  Domain  of  Political  Science,"  in  the  "  Political  Science 
Quarterly,"  vol.  I,  p.  5. 


12  POLITICAL    SCIENCE 

we  believe  that  either  form  may  be  justified  by  distinguish- 
ing between  poHtical  science  in  its  widest  and  most  general 
sense,  and  the  auxiliaries  or  disciplines  of  that  science, 
employing  the  singular  to  designate  the  former  and  the 
plural  the  latter/  The  former  is  the  general  science  of  the 
state,  the  state  in  the  aggregate,  the  state  considered  from 
all  points  of  view;  the  latter  are  the  special  or  disciplinary 
sciences  which  deal  with  particular  aspects  or  activities  of 
the  state.  Such  are  the  sciences  of  jurisprudence,  political 
economy,  public  law,  sociology,  political  and  constitutional 
history,  etc. 

II.     DEFINITION   AND    SCOPE 

It  was  a  saying  of  a  great  Roman  jurist  that  all  defini- 
tions are  dangerous  because  they  never  go  far  enough  and 
are  nearly  always  contradicted  by  the  facts.  The  truth  of 
this  observation  applies  as  well  to  general  propositions  in 
political  science  as  to  those  of  the  civil  law.  Nevertheless, 
it  is  equally  true,  as  has  been  well  said  by  a  noted  political 
writer,  that  "to  obtain  clear  and  precise  definitions  of  the 
leading  terms  is  an  important  achievement  in  all  depart- 
ments of  scientific  inquiry."  ^  The  renowned  German 
scholar  Bluntschli  defined  political  science  {Staatswissen- 
schaft)  as  "the  science  which  is  concerned  with  the  state, 
which  endeavors  to  understand  and  comprehend  the  state 
in  its  fundamental  conditions,  in  its  essential  nature,  its 
various  forms  of  manifestation,  its  development."  ^   Gareis, 

'  See  Jellinek  {op.  cit.,  pp.  5-6),  who  points  out  the  necessity  of  distinguishing  be- 
tween the  science  of  the  state  in  the  larger  sense  of  the  word,  including  the  science 
of  the  law;  and  the  sciences  of  the  state  in  a  stricter  sense  which  may  be  designated 
as  disciplines;  see  also  Von  Mayr,  "Begriff  und  GHederung, "  who  dwells  upon  the 
same  distinction. 

*  Sidgwick,  "Elementsof  Politics,"  p.  19.  Compare  also  Bain,  "Deductive  and 
Inductive  Logic,"  p.  547,  and  Rehm,  "  Allgemeine  Staatslehre,"  p.  i.  For  further 
observations  on  the  value  of  definitions  in  political  science  see  Munroe  Smith  in  the 
"Political  Science  Quarterly,"  vol.  I,  p.  i;  Rowe,  "Problems  of  Political  Science," 
"Annals  of  the  American  Academy  of  Political  and  Social  Science,"  vol.  X,  p.  23. 

'  "Allegemeine  Staatslehre,"  being  vol.  I  of  his  "Lehre  vom  mod.  Staat,"  p.  16 
Compare  also  Holtzendorff,  "Principien  der  Politik,"  p.  10. 


DEFINITION   AND   SCOPE  13 

another  German  writer,  says  "Political  science  considers 
the  state,  as  an  institution  of  power  (Machtzvesen) ,  in  the 
totality  of  its  relations,  its  origin,  its  setting  (land  and 
people),  its  object,  its  ethical  signification,  its  economic 
problems,  its  life  conditions,  its  financial  side,  its  end,  etc."* 
Jeilinek,  one  of  the  ablest  of  living  European  publicists, 
distinguishes  between  theoretical  political  science  (theore- 
Hsche  Staatswissenschaft  oder  Staatslehre)  and  applied  politi- 
cal science  {angewandte  oder  praktische  Staatswissenschaft) . 
Theoretical  political  science  is  again  subdivided  by  Jeilinek 
into  the  general  theory  of  the  state  {allgememe  Staatslehre) 
and  special  or  particular  theory  of  the  state  {hesondere  Staats- 
lehre). The  former  has  for  its  purpose  the  study  of  funda- 
mental principles.  It  considers  the  state  in  itself  and  the 
elements-  which  constitute  it;  not  the  phenomena  of  a 
particular  state,  but  the  totality  of  all  the  historico-social 
aspects  in  which  the  state  manifests  itself.  Further- 
more, the  dual  nature  of  the  state,  that  is,  its  character 
both  as  a  social  phenomenon  and  a  legal  or  juridical  insti- 
tution, furnishes  the  basis  for  still  another  distinction,  to 
\vit,  that  between  the  social  doctrine  of  the  state  {soziale 
Staatslehre)  and  constitutional  political  theory  {Staats- 
rechtslehre) .  The  former  deals  with  the  state  primarily  as 
a  social  organization,  that  is,  as  a  society  of  individuals 
organized  for  common  ends;  the  latter,  with  the  state  as 
a  concept  of  public  law,  a  juristic  entity  or  legal  phe- 
nomenon.^ 

*  "Allgemeine  Staatslehre,"  in  Marquardsen's  "Handbuch  des  ofifentlichen 
Rechts,"  Einleitungsband,  I,  p.  i.  Zacharia,  one  of  the  early  German  writers  on 
the  state,  conceived  the  province  of  political  science  to  be  "to  set  forth  in  system- 
atic order  the  fundamental  principles  according  to  which  the  state  as  a  whole  is  to 
be  organized  and  the  sovereign  power  exercised."  "  Vierzig  Biicher  vom  Staate," 
vol.  I,  bk.  6,  sec.  i. 

'  See  Jeilinek,  "Recht  des  mod.  Staates,"  pp.  9-13.  Sir  G.  C.  Lewis  subdivided 
the  study  of  political  phenomena  into  the  "  science  of  politics ' '  and  the  "  art  of  politics," 
or  pure  and  applied  politics,  the  latter  consisting  mainly  of  maxims  of  political  prac- 
tice. The  science  of  politics  he  subdivided  into  three  "principal  departments." 
The  first  has  to  do  with  the  registration  of  political  facts,  gained  by  observation  and 


14  POLITICAL   SCIENCE 

A  succinct  definition  is  that  of  Paul  Janet,  a  distinguished 
French  writer,  who  conceives  political  science  to  be  "that 
part  of  social  science  which  treats  of  the  foundations  of 
the  state  and  the  principles  of  government."^  According 
to  Seeley,  "political  science  investigates  the  phenomena 
of  government  as  political  economy  deals  with  wealth, 
biology  with  life,  algebra  with  numbers,  and  geometry 
with  space  and  magnitude."^  Seeley  points  out  that  as 
most  of  the  commonwealths  of  antiquity  were  city  states, 
ancient  political  science  was  little  more  than  the  science 
of  municipal  government,  a  truth  which  finds  illustration 
in  Aristotle's  treatise  on  "Politics,"  a  work  practically 
limited  in  its  scope  to  the  consideration  of  such  polities 
only  as  were  city  states.  Modern  political  science  on  the 
other  hand  is,  as  has  been  well  said,  the  science  of  the 
national  country  state  and  is  tending  to  become  the  science 
of  the  world  state.  Furthermore,  says  a  well  known  writer, 
the  modern  requirements  of  territorial  expansion,  repre- 
sentative government,  and  national  unity  have  made  po- 
litical science  not  only  the  science  of  liberty  but  also  the 
science  of  sovereignty.^ 
Points  All   of   the   opinions  quoted    above   are  in   substantial 

metr^°  agreement  on  the  essential  point,  namely,  that  the  phe- 
nomena of  the  state  in  its  varied  aspects  and  relation- 
study.  The  second,  which  he  denominated  "positive  or  descriptive  politics,"  teaches 
what  "is  involved  in  the  idea  of  political  government  and  corresponds  to  the  statical 
branch  of  mechanics.  It  defines  the  elements  necessary  to  constitute  a  government 
and  explains  the  various  forms  without  passing  judgment  on  their  relative  merits." 
The  third  "department,"  vi^hich  he  designated  as  "speculative  politics,"  inquires 
how  certain  forms  of  government  or  institutions  work,  seeks  to  determine  from 
the  observed  facts  and  principles  of  human  nature  their  character  and  tendency, 
the  operation  of  laws,  etc.  "Methods  of  Observation  and  Reasoning  in  Politics," 
vol.  I,  pp.  53-59- 

*  Art.  "Politique,"  in  Block's  "Dictionnaire  de  la  Politique,"  vol.  II,  p.  577. 

*  "Introduction  to  Political  Science,"  p.  18. 

'Burgess,  "Relation  of  Political  Science  to  History,"  in  Report  of  the  American 
Historical  Association  for  1896,  vol.  I,  p.  206.  For  another  view  that  liberty  is  one 
of  the  "chief  subjects  "of  political  science,  see  Lieber,  "Civil  Liberty  and  Self-govern- 
ment," p.  44;   also  his  "Political  Ethics,"  vol.  I,  bk.  II,  ch.  13. 


DEFINITION   AND   SCOPE  15 

ships,  as  distinct  from  the  family,  the  tribe,  the  nation, 
and  from  all  private  associations,  though  not  unconnected 
with  them,  constitute  the  subject  of  political  science.  In 
short,  political  science  begins  and  ends  with  the  state. 
In  a  general  way  its  fundamental  problems  include,  first, 
an  investigation  of  the  nature  of  the  state  as  the  highest 
political  agency  for  the  realization  of  the  common  ends  of 
society  and  the  formulation  of  fundamental  principles  of 
state  life;  second,  an  inquiry  into  the  nature,  history,  and 
forms  of  political  institutions;  and  third,  a  deduction 
therefrom,  so  far  as  possible,  of  the  laws  of  political 
growth  and  development.^  In  the  process  of  evolution 
the  appearance  of  new  political  conditions  may  give  rise 
to  new  problems,  but  upon  close  analysis  they  will  be  seen 
to  be  problems  of  practical  politics  rather  than  funda- 
mental problems  of  political  science.^ 

The  distinction  between  political  science  {Staatswissen-  Political 
schaft)  and  political  theory  or  political  philosophy  {Staats-  fnd  po^iiti 
lehre,  Staats philo so phie)  is  generally  observed  by  the  more  cai  Phi- 
systematic  writers  on  the  state,  though  a  precise  demarca-    °^°^  ^ 
tion  of  the  boundary  lines  which  separate  them  is  difficult, 
if  not  impossible.     Political  philosophy  is  said  to  be  con- 
cerned with  a  theoretical  or  speculative  consideration  of  the 

^  "The  task  of  political  sdence,"  says  Jellinek,  "is  to  study  in  their  fundamental 
relations  the  public  powers,  to  examine  the  conditions  under  which  they  manifest 
themselves,  their  end  and  their  effect,  to  investigate  the  state  in  its  inner  nature." 
"  Recht  des  mod.  Staates,"  pp.  9-10. 

*  Treitschke,  in  his  brilliant  work,  "Politik, "  thus  states  the  problem  of  poHtical 
science:  "First,  it  should  aim  to  determine  from  a  consideration  of  the  actual 
world  of  states  the  fundamental  concepts  of  the  state;  second,  it  should  consider 
historically  what  the  people  have  chosen,  what  they  have  created,  and  what  they  have 
attained  in  political  life,  and  the  reasons;  and,  third,  through  this  means,  it  should 
determine  historical  laws  and  moral  imperatives,"  vol.  I,  p.  2.  Cf.  also  Willoughby, 
"The  Nature  of  the  State,"  p.  382.  "Generally  speaking,"  says  Willoughby, 
"there  are  three  great  topics  with  which  political  science  has  to  deal :  state,  govern- 
ment, law."  "Political  Science,  as  a  University  Study,"  "  Sewanee  Review,"  July, 
1906,  p.  258.  Sidgwick  divides  the  problems  of  political  science  into  two  general 
divisions :  those  relating  to  the  organization  of  the  state  and  those  relating  to  its  func- 
tion.    "Elements  of  Politics,"  p.  12. 


i6  POLITICAL   SCIENCE 

fundamental  principles  and  essential  characteristics  of  the 
materials  and  phenomena  with  which  political  science  has 
to  deal.  It  investigates  the  development  of  political 
thought,  and  inquires  into  the  foundations  of  political  au- 
thority; it  analyzes,  classifies,  and  forms  judgments  upon 
the  essential  attributes  of  the  state  and  thereby  prepares 
the  way  for  a  true  political  science.  It  is  concerned  rather 
with  generalizations  than  with  particulars,  and  predicates 
essential  qualities  rather  than  accidental  or  unessential 
characteristics.^  Again,  it  is  said  that  while  political  sci- 
ence furnishes  us  with  the  results  of  logical  thinking  upon 
the  nature  and  forms  of  concrete  political  institutions, 
political  philosophy  inquires  into  the  foundations  of  the 
first  principles  which  underlie  them.^  A  few  writers  make 
the  distinction  one  mainly  of  teleology,  pohtical  science 
being  concerned  with  what  the  state  ought  to  be,  while 
political  philosophy  considers  the  state  as  it  actually  is.^ 
But  this  distinction  is  not  generally  observed. 

IIL     IS    THERE   A    SCIENCE   OF    GOVERNMENT  ? 

Thus  far  it  has  been  assumed  that  the  study  of  the  phe- 
nomena of  the  state  may  under  proper  conditions  be  treated 
as  a  science.  To  this  assumption,  however,  objections 
have  been  raised.  Thus,  it  has  been  asserted  that,  on  ac- 
countof  the  magnitude  and  complexity  of  the  subject-matter 

'  Willoughby,  "Political  Philosophy"  in  the  "South  Atlantic  Quarterly,"  vol.  V 
p.  i6i;  also  an  article  by  the  same  author  entitled  "The  Value  of  Political  Phi- 
losophy, "  in  the  "  Political  Science  Quarterly  "  for  March,  1900.  See  also  Dunning, 
"Ancient  and  Medieval  Political  Theories,"  p.  xvii.  The  distinction  between 
Staatslehre  and  Staatswissenschafi  is  dwelt  upon  and  explained  by  Rehm  in  his 
"Allgemeine  Staatslehre,"  p.  i,  and  by  Schmidt  in  his  "Grundziige  der  praktischen 
PoJitik,"  pp.  1-3. 

*  Compare  on  this  point  Huxley's  distinction  between  a  science  and  a  philosophy 
in  his  "Object  and  Scope  of  Philosophy,"  Essays,  vol.  VI,  p.  57. 

'This  is  Sidgwick's  distinction.  See  his  "Elements  of  Politics,"  p.  7.  This 
opinion,  however,  is  inconsistent  with  an  earlier  view  of  Sidgwick  that  political 
science  endeavors  to  determine  what  ought  to  be  so  far  as  the  constitution  of  govern- 
ment is  concerned.     "Development  of  European  Polity,"  p.  2. 


IS   THERE   A   SCIENCE   OF   GOVERNMENT?  17 

relating  to  the  state,  —  a  body  of  material,  says  an  acute 
thinker,  so  rich  and  varied  that,  from  the  beginning,  politi- 
cal science  has  been  embarrassed  by  the  weight  of  its  wealth, 
—  it  is  impossible  to  apply  to  it  rigorous  scientific  methods 
of  investigation.  Political  phenomena,  we  are  told,  are 
characterized  by  uncertainty,  variableness,  and  a  lack  of 
order  and  continuity/  Much  of  this  objection  is,  however, 
without  weight.  If,  says  Sir  Frederick  Pollock,  those  who 
deny  the  existence  of  a  political  science  mean  that  there  is 
no  body  of  rules  from  which  a  prime  minister  may  infallibly 
learn  how  to  command  a  majority,  they  would  be  right  as 
to  the  fact,  but  would  betray  a  rather  inadequate  notion 
of  what  a  science  is.  "There  is,"  he  rightly  concludes,  "a 
political  science  in  the  same  sense  that  there  is  a  science  of 
morals."  ^ 

For  our  purposes  a  science  may  be  described  as  a  fairly  The  Test 
unified  mass  of  knowledge  relating  to  a  single  subject,  g^ienc< 
acquired  by  systematic  observation,  experience,  or  reason, 
the  facts  of  which  have  been  coordinated,  systematized, 
and  classified.'  The  scientific  method  of  examining  facts 
is  not  peculiar  to  one  class  of  phenomena  nor  to  one  class  of 
investigators;  it  is  applicable  to  social  as  well  as  to  physical 
phenomena,  and  we  may  safely  reject  the  claim  that  the 
scientific  frame  of  mind  belongs  exclusively  to  the  physicist 
or  the  naturalist.  Authorities  are  now  generally  agreed 
that  the  phenomena  of  the  state  present  a  certain  connection 

*  Compare  Amos,  "The  Science  of  Politics,"  pp.  2-16.  Comte  denies  the  claim 
of  "politics"  to  be  ranked  as  a  science  because  (i)  there  is  no  consensus  of  opinion 
among  experts  as  to  its  methods,  principles,  and  conclusions;  (2)  it  lacks  continuity 
of  development,  and  (3)  it  lacks  the  elements  which  constitute  a  basis  of  prevision. 
''Positive  Philosophy,"  Eng.  tr.  by  Martineau,  ed.  of  1893,  vol.  II,  ch.  3. 

*  "  History  of  the  Science  of  Politics,"  p.  2. 

^  Compare  the  definition  of  "Science"  in  the  Century  Dictionary ;  see  also  Lieber, 
"Political  Ethics,"  vol.  I,  p.  17.  "The  classification  of  facts  and  the  formation  of 
absolute  judgments  upon  the  basis  of  this  classification,"  says  Pearson,  in  his  "Gram- 
mar of  Science,"  p.  6,  "essentially  sum  up  the  aim  and  method  of  modern  science." 
Again,  he  says,  "the  classification  of  facts,  the  recognition  of  their  sequence  and  rel- 
ative significance,  is  the  function  of  science." 
POL.  SCI.  —  2 


l8  POLITICAL   SCIENCE 

or  sequence  which  is  the  result  of  fixed  laws,  though  less 
immutable,  to  be  sure,  than  those  of  the  physical  v/orld; 
that  these  phenomena  form  proper  subjects  of  scientific 
investigation;  and  that  the  laws  and  principles  deducible 
therefrom  are  susceptible  of  application  to  the  solution  of 
concrete  problems  of  the  state/  All  that  is  required  to 
give  a  scientific  character  to  the  study  of  political  phe- 
nomena is  that  the  inquiry  shall  be  conducted  in  accordance 
with  a  definite  plan  or  system,  with  due  regard  to  the  rela- 
tions of  cause  and  effect,  so  far  as  they  are  ascertainable, 
and  in  conformity  with  certain  well-recognized  rules  of 
scientific  investigation.^ 
The  Con-  The  consensus  of  scientific  opinion  is  in  favor  of  this 
Opkaon*  proposition.  Aristotle  described  "pohtics"  as  the  master 
science  in  the  highest  sense  ^  and  in  practice  he  applied 
scientific  methods  to  his  study  of  Greek  polities.  The 
Germans  have  done  more  than  any  other  group  of  scholars, 
by  their  profound  researches  and  discriminating  analytical 
methods,  to  give  to  it  the  character  of  a  science.  Holtzen- 
dorff,  one  of  the  most  systematic  of  the  German  writers, 
ably  defended  the  claim  of  politics  to  be  ranked  as  a  science. 
"With  the  enormous  growth  of  knowledge,"  he  said,  "it  is 
impossible  to  deny  that  the  sum  total  of  all  the  experiences, 
phenomena,  and  knowledge  respecting  the  state  may  be 
brought  together  under  the  collective  title  of  political 
science"  (Staatswissenschaft) .*  This  is  the  view  of  Von 
Mohl,  Bluntschli,  Jellinek,  Ratzenhofer,  Treitschke,  Sir  G. 
C.  Lewis,  Sidgwick,  Lieber,  Woolsey,  Burgess,  Willoughby 
and  other  systematic  writers  on  the  state.  "//  y  a  done 
une  science  de  Vetat,'"  says  Janet,  ''  non  pas  de  tel  ou  tel  Stat 
en  particulier,  mats  de  Vetat  en  general,  considers  dans  sa 

*  Compare  on  this  point  J.  S.  Mill,  "  System  of  Logic,"  p.  549. 

'"Whether  there  is  a  'political  science,'"  says  Huxley,  "depends  on  whether 
any  rational  principles  can  be  found  to  regulate  the  form  of  constitutions,  the  deter- 
mination of  the  sphere  of  the  state,  which  make  a  complete  and  systematized  branch 
of  knowledge,  clearly  formulated  and  understood  in  their  mutual  relations." 

*  "Ethics,"  bk.  I,  ch.  n.  *  "Principien  der  Politik,"  p.  4. 


THE   METHODS   OF    POLITICAL   SCIENCE  19 

nature,  ses  lots,  et  dans  ses  principales  formesy^  We  must 
conclude,  therefore,  that  both  reason  and  the  weight  of  au- 
thority justify  the  claim  of  politics  to  the  rank  of  a  true 
science.  It  renders  practical  service  by  deducing  sound 
principles  as  a  basis  for  wise  political  action  and  by  expos- 
ing the  teachings  of  a  false  political  philosophy.^  As  a 
science  it  falls  short,  of  course,  of  the  degree  of  perfection 
attained  by  the  physical  sciences,  for  the  reason  that  the 
facts  with  which  it  deals  are  more  complex  and  the  causes 
which  influence  social  phenomena  are  more  difficult  of  con- 
trol and  are  perpetually  undergoing  change.^  On  account 
of  the  impossibility  of  forecasting  results  with  the  same 
exactness  and  precision  possible  in  the  physical  sciences,  a 
fully  developed  science  of  the  state  must  of  necessity  re- 
main always  an  ideal.  As  yet  it  is  still  probably  the  most 
incomplete  and  undeveloped  of  all  the  social  sciences.* 

IV.     THE   METHODS    OF    POLITICAL   SCIENCE 

Having  endeavored  to  show  that  the  study  of  political  Limita- 
phenomena  may  under  certain  conditions  acquire  the  char-  ^^^^i. 
acter  of  a  science,  we  come  now  to  inquire  into  the  pro-  ^es 
cesses  and  methods  by  which  this  may  be  done.     First  of 
all,  however,  we  must  note  the  limitations  and  difficulties 

^  "Histoire  de  la  Science  politique,"  etc.,  vol.  I,  p.  Ixxv. 

^  "Thus,"  says  Sir  Frederick  Pollock,  "political  science  must  and  does  exist,  if  it 
were  only  for  the  refutation  of  absurd  political  theories  and  projects."  "History  of 
the  Science  of  Politics,"  p.  4. 

^  Compare  on  this  point  Mill,  "System  of  Logic,"  p.  549;  and  Ritchie,  "Studies 
in  Political  and  Social  Ethics,"  p.  106. 

*  Buckle,  in  his  "History  of  Civilization,"  written  in  1857,  declared  that,  "in  the 
present  state  of  knowledge  politics  so  far  from  being  a  science  is  one  of  the  most 
backward  of  all  the  arts"  (vol.  I,  p.  361).  Buckle,  however,  did  not  deny  the  possi- 
bility of  a  political  science ;  what  he  lamented  was  that  so  little  attention  had  been 
given  to  the  study  of  the  state,  that  as  a  systematic  branch  of  knowledge  it  was  too 
crude  and  undeveloped  to  be  considered  as  a  science.  Of  the  same  opinion  was  Mill, 
v.'ho  wrote  in  1S43,  "^^  is  accordingly  but  of  yesterday  that  the  concept  of  a  political 
or  social  science  has  existed  anywhere  but  in  the  mind  of  here  and  there  an  isolated 
thinker,  generally  very  ill  prepared  for  the  realization."    "System  of  Logic,"  p.  547. 


20  POLITICAL   SCIENCE 

under  which  scientific  investigation  of  poHtical  phe- 
nomena must  of  necessity  be  conducted.  The  material  with 
which  the  political  scientist  has  to  deal  is  very  different 
from  that  with  which  the  investigator  in  the  physical 
sciences  is  concerned,  being  of  such  a  character  as  not 
to  permit  of  the  use  of  artificial  contrivances  or  appara- 
tus for  increasing  or  guiding  our  powers  of  observation 
or  for  registering  results.  Not  only  must  the  investigator 
work  without  the  assistance  of  mechanical  aids,  but  he  is 
handicapped  by  the  fact  that  the  phenomena  with  which 
political  science  deals  do  not  follow  one  another  according 
to  invariable  laws  of  sequence,  but  rather  at  indeterminate 
intervals,  constituting,  as  a  noted  writer  observes,  an 
"interminable  and  perpetually  varying  series."  ^  There  is 
an  essential  difference  between  physical  and  social  phe- 
nomena. The  facts  of  history  and  social  life  cannot  be 
reproduced  at  our  volition  and  made  the  subject  of  experi- 
ment with  a  view  to  determining  what  is  best  under  a  given 
set  of  circumstances.  Social  facts  never  recur  at  regular 
intervals  as  the  manifestations  of  general  forces,  but  rather 
as  the  actions  of  certain  individuals.  The  facts  of  natural 
science  are  susceptible  of  evaluation;  they  are  governed  by 
uniform  and  invariable  laws.  Each  particle  of  matter 
is  identical  with  every  other  of  its  own  kind.  An  atom  of 
carbon  or  a  molecule  of  carbonic  acid  is  not  different  from 
any  other  atom  or  molecule,  but  the  units  of  the  social  or- 
ganism may  differ  infinitely  from  one  another.  There  are 
no  general  and  invariable  laws  governing  social  phenomena. 
Those  which  have  been  postulated  by  the  ancient  philoso- 
phers and  some  modern  sociologists  are  but  vague  and 
glittering    generalities. 

Not  until  the  eighteenth  and  nineteenth  centuries 
did  the  phenomena  of  the  state  come  to  be  generally 
regarded    as    a    proper   field    for   scientific    investigation, 

•  George  Come  wall  Lewis,  "Methods  of  Observation  and  Reasoning  in  Politics," 

vol.  I,  p.  121. 


THE   METHODS   OF   POLITICAL   SCIENCE  21 

since  which  time  the  literature  of  the  subject  has  been 
enriched  by  the  investigations  of  many  scholars,  among 
whom  may  be  mentioned  Von  Haller,  Von  Mohl,  Waitz, 
Zacharia,  Holtzendorff,  and  BluntschH  in  Germany; 
Rousseau,  Montesquieu,  De  Tocqueville,  and  Laboulaye  in 
France;  Locke,  Bentham,  Paley,  Lewis,  Brougham,  Austin, 
Mill,  Seeley,  and  Sidgwick  in  England;  and  Hamilton, 
Madison,  Woolsey,  and  Lieber  in  America.  Among  those 
who  have  made  special  contributions  to  the  methodology 
of  political  science  Auguste  Comte,  John  Stuart  Mill,  Alex- 
ander Bain,  and  Sir  George  Cornewall  Lewis  deserve  partic- 
ular mention/  Comte  conceived  the  principal  methods 
for  the  scientific  study  of  social  phenomena  to  be  three  in 
number,  namely,  observation,  experiment,  and  comparison.* 
Mill  recognized  four  methods:  the  chemical  or  experi- 
mental, the  geometrical  or  abstract,  the  physical  or  con- 
crete deductive,  and  the  historical  method,  the  first  two  of 
which  he  considered  to  be  false  methods,  the  last  two,  the 
true  ones.^  BluntschH  considered  the  true  methods  of 
political  investigation  to  be  the  philosophical  and  the  his- 
torical.'' A  recent  French  writer  who  has  devoted  a  volume 
to  the  subject  of  methodology  in  political  science  recognizes 
six  possible  lines  of  investigation :  first,  the  sociological ; 
second,  the  comparative;  third,  the  dogmatic;  fourth,  the 
juridical;  fifth,  the  method  of  good  sense  {du  bon  sens) ;  and, 
sixth,  the  historical.^     Other  writers  dwell  upon  what  they 

*  Jellinek  observes  that  in  the  literature  of  political  methodology  the  greatest  con- 
fusion reigns.  Many  of  the  best  writers  on  the  subject,  he  says,  have  not  been  con- 
scious of  the  difficulties  and  have  not  learned  how  easy  it  is  to  fall  into  error  by  con- 
founding fantasies  and  analogies  with  real  truths.  "  Recht  des  mod.  Staates," 
p.  24.  For  an  examination  of  the  literature  and  a  discussion  of  the  subject  of  the 
methodology  of  political  science,  see  Jellinek,  op.  clt.,  bk.  I,  ch.  2. 

^  "Positive  Philosophy"  (tr.  by  Martineau),  vol.  II,  pp.  79-91.  Comte  conceived 
an  ultimate  fourth  method,  the  historical,  to  be  applied  only  in  the  investigation  of  the 
most  complex  social  phenomena.  Compare  also  McKenzie,  "Introduction  to  Social 
Philosophy,"  p.  14. 

^  "System  of  Logic,"  pp.  550-587.       *  "  Allgemeine  Staatslehre,"  bk.  I,  ch.  II. 

*  Deslandres,  "La  Crise  de  la  Science  politique  at  le  Probl^me  de  la  M^thode." 


22 


POLITICAL   SCIENCE 


Recog- 
nized 
Methods 


The 
Method 
of  Experi 


are  pleased  to  call  the  biological  and  psychological  methods. 
Without  considering  each  of  these  in  turn  we  may  observe 
that  some  of  them  are  hardly  applicable  to  the  study  of  politi- 
cal phenomena,  while  others  are  nothing  more  than  particular 
forms  of  the  comparative  method  —  a  method  so  broad  as 
to  comprehend  the  processes  of  accumulation,  arrangement, 
classification,  coordination,  elimination,  and  deduction. 

We  may  well  question  the  claim  of  the  experimental 
method  to  a  rightful  place  in  the  methodology  of  poHti- 
mentation  cal  science  bccausc,  as  has  already  been  stated,  the  nature 
of  society  is  such  that  it  cannot  very  well  be  made  an 
object  of  artificial  experimentation.  "We  cannot,"  says 
Sir  George  C.  Lewis,  "treat  the  body  politic  as  a  corpus 
vile  and  vary  its  circumstances  at  our  pleasure  for  the  sake 
only  of  ascertaining  abstract  truth.  We  cannot  do  in 
pohtics  what  the  experimenter  does  in  chemistry.  We 
cannot  try  how  the  substance  is  affected  by  change  of  tem- 
perature, by  burning,  by  dissolution  in  liquids,  by  combina- 
tion with  other  chemical  agents,  and  the  like.  We  cannot 
take  a  portion  of  the  community  in  our  hands  as  the  king 
of  Brobdignag  took  Gulliver,  view  it  in  different  aspects 
and  place  it  in  different  positions  in  order  to  solve  social 
problems  and  satisfy  our  speculative  curiosity."  ^  If  the 
chemist  wishes  to  study  the  effect  of  a  combination  of  cer- 
tain substances,  he  can  create  by  artificial  processes  condi- 
tions favorable  to  the  investigation  and  exclude  disturbing 
agencies.  He  may  isolate  the  phenomenon  with  which  he 
deals  and  expose  it  to  certain  selected  influences,  leaving 
the  surrounding  medium  unchanged.  But  if  the  political 
scientist  wishes  to  experiment  with  democracy,  for  in- 
stance, he  cannot  select  a  state  at  will,  introduce  his  democ- 
racy and  wait  for  determinate  results.  He  will  find  him- 
self powerless  to  exclude  extraneous  influences,  such,  for 
example,  as  famines,  commercial   crises,  insurrections,  or 


'  "Methods  of  Observation  and  Reasoning  in  Politics,"  vol.  I,  pp.  164-165. 


THE   METHODS   OF   POLITICAL   SCIENCE  23 

other  happenings  which  might  destroy  the  results  of  the 
experiment/ 

But  while  scientific  experimentation,  as  the  term  is 
employed  in  the  physical  sciences,  is  inapplicable  to  the 
study  of  politics,  practical  experiments,  the  experimenta 
fnidifera  of  Bacon,  are  being  constantly  made,  con- 
sciously or  unconsciously.  It  is  true,  as  Comte  points  out, 
that  political  experimentation  really  takes  place  whenever 
the  regular  course  of  state  life  undergoes  conscious  or  un- 
conscious change.^  Government,  of  necessity,  is  constantly 
trying  experiments  on  the  community.^  Indeed  the  whole 
life  of  the  state  is  a  succession  of  activities  which,  in  a  sense, 
are  experimental  in  character.  The  enactment  of  every 
new  law,  the  establishment  of  every  new  institution,  the 
inauguration  of  every  new  policy,  is  experimental  in  the 
sense  that  it  is  regarded  merely  as  provisional  and  tentative 
until  experience  has  proved  its  fitness  to  become  perma- 
nent. By  observing  the  operation  of  a  new  law  or  a  new 
policy  and  then  enlarging  or  diminishing  its  scope  as  expe- 
rience suggests  modification,  the  legislature  is  able  to  adapt 
its  provisions  to  the  needs  and  desires  of  the  community. 
The  process  is  in  the  nature  of  an  experiment  whose  pur- 
pose is  not  the  ascertainment  of  a  general  truth  —  not 
experimenta  lucifera  —  but  experiments  for  the  purpose 
of  testing  and  improving  the  institution. 

The  so-called   sociological    method    considers    the   state  The  So- 
primarily  as  a  social  organism,  whose  component  parts  are  an]°|io-^ 
individuals,  and  seeks  to  deduce  its  qualities  and  attributes  log'cai 
from  the  qualities  and  attributes  of  the  men  composing  it. 
It  seeks  to  interpret  the  life  of  the  state  by  applying  to  it 
the  theory  of  evolution  in  the  same  way  that  the  growth 

^  Compare  Bain,  "Deductive  and  Inductive  Logic,"  p.  563. 

*  "Positive  Philosophy,"  vol.  II,  p.  83. 

'  Lewis,  op.  cil.,  vol.  I,  p.  173.  "If  by  an  experimental  science,"  observes  Lewis, 
"we  mean  a  science  which  admits  of  scientific  experiments,  of  experimenta  hicifera, 
then  politics  is  not  an  experimental  science;  but  if  we  mean  a  science  founded  on 
observation  and  experience,  politics  is  an  experimental  science."     Op.  cit.,  p.  178. 


24  POLITICAL   SCIENCE 

of  the  individual  is  explained  by  evolution.  Closely  akin 
to  the  sociological  method  is  the  biological,  which  attributes 
to  the  state  the  attributes  of  a  living  organism  and  which 
attempts  to  define  and  classify  its  separate  parts,  to  de- 
scribe its  structure  in  the  nomenclature  of  anatomy,  and  to 
differentiate  and  analyze  its  functions  and  trace  its  life 
processes  according  to  the  methods  and  terminology  of  the 
biological  sciences.  Among  those  who  have  made  notable 
contributions  to  the  study  of  organized  society  from  the 
sociological  and  biological  points  of  view  may  be  men- 
tioned Auguste  Comte,  Herbert  Spencer,  the  Austrian 
scholars  Gumplowicz  and  Schaffle,  and  the  French  writers 
Durkheim,  De  Greef,  Fouillee,  and  Letourneau,  and  the 
Russian  Lilienfeld.  Comte  in  this  study  of  society 
dwells  at  length  upon  what  he  calls  "social  physics"  and 
"social  physio'ogy."^  Spencer,  who  was  deeply  infatu- 
ated with  the  biological  analogy,  drew  a  striking  par- 
allel between  the  social  and  animal  organisms,  pointing 
out  that  each  possessed  a  "sustaining  system,"  a  "dis- 
tributing system"  and  a  "regulating  and  expending 
system."  ^ 

The  first  criticism  to  be  made  of  the  sociological  and 
biological  theories  is  that  they  are  not  so  much  methods  of 
investigation  as  points  of  view  from  which  the  state  may  be 
considered.  The  biological  method  rests  mainly  upon 
analogy  instead  of  upon  real  similarity  in  essentials.  It 
requires  but  little  reflection  to  see  that  the  resemblance 
between  the  body  politic  and  the  human  organism  is  at 

'  "Positive  Philosophy,  ed.  of  i86S,  pp.  487-489.  For  an  identification  of  socio- 
logical and  biological  laws  see  an  article  by  M.  Novicow,  "Annales  de  I'lnst.  de 
Sociologie,"  1897,  p.  79.  For  a  discussion  of  the  so-called  sociological  method  see 
Deslandres,  op.  cit.,  p.  53  et  seq.;  Worms,  "Revue  int.  de  Sociologie,"  1893,  p.  12; 
Gumplowicz,  "Sociologie  und  Politik,"  also  his  "  Sociologische  Staatsidee";  Durk- 
heim, "Les  Regies  de  la  Methode  sociologique " ;  De  Greef,  "Les  Lois  sociolo- 
giques";  and  Fouillee,  "La  Science  sociale  contemporaine,"  ch.  III. 

^  See  his  "Principles  of  Sociology,"  vol.  I,  chs.  7,  8,  and  9.  For  an  ingenious 
attempt  to  trace  the  resemblances  between  natural  science  and  political  science, 
see  Gumplowicz,  "AUgemeine  Staatsrecht,"  ch.  i. 


THE  METHODS   OF   POLITICAL   SCIENCE  25 

best  only  superficial,  that  the  laws  of  growth  and  change 
which  govern  the  one  are  inapplicable  to  the  growth  and 
development  of  the  other,  and  that  little  or  nothing  is  to 
be  gained  by  dwelling  upon  the  analogy.  ^ 

Essentially  the  same  judgment  may  be  passed  upon  the  The 
so-called  psychological^  method,  which  in  recent  years  has  lo^^car 
been  overexploited  by  a  certain  class  of  writers,  mostly  Method 
French,  who  have  attempted  to  explain  social  phenomena  and 
interpret  social  institutions  through  psychological  laws.^ 

A  method  of  treatment  which  enjoys  great  favor  among  The 
German  political  writers  and  to  a  less  degree  among  the  ^e^hod^ 
French  is  the  juristic  or  juridical  method.^  It  is  the  aim 
of  this  method,  according  to  Jellinek,  to  "determine  the 
content  of  the  rules  of  public  law  and  to  deduce  therefrom 
the  conclusions  to  which  they  lead."  It  regards  political 
science  as  a  science  of  legal  norms  {Staatsrechtslehre)  having 
nothing  in  common  with  the  science  of  the  state  as  a  social 
organism  {Soziale  Staatslehre) .  It  conceives  the  relations 
of  the  state  always  as  "offentliche  Verhdltnisse,"  political 
concepts  as  ''Rechtsbegriffe"  and  describes  the  constitution 
and  activities  of  the  state  only  in  terms  of  their  ''rechtliche 
Natur.''  In  short,  it  treats  society,  not  as  a  social  phe- 
nomenon, but  as  a  purely  juridical  regime,  an  ensemble  of 
public  law,  rights,  and  obligations,  founded  on  a  system  of 

^  See  an  article  by  Lilienfeld,  entitled  "  Y  a-t-il  une  loi  de  revolution  des  formes 
politiques?"  in  the  "  Annales  de  I'Inst.  de  Sociologie,"  1895,  pp.  235-246.  For  a 
negative  view  see  an  article  by  Starke  in  the  same  journal  in  the  year  1896. 

*  For  a  defense  of  the  psychological  method  in  the  study  of  the  social  sciences 
see  an  article  by  M.  Beudant,  in  the  "Revue  du  Droit  public,"  1896,  vol.  V,  pp. 
434-456.  Beudant's  views  are  criticised  by  M.  Worms  (ibid.,  vol.  VI,  pp.  66-70) 
and  the  latter's  reply  is  in  turn  answered  by  Beudant  (ibid.,  pp.  469-475).  See  also 
Le  Bon,  "Lois  psychologiques  de  I'Evolution  des  Peuples";  Baldwin,  "Psychology 
of  Social  Organization"  in  the  "Psychological  Review,"  vol.  XIV,  p.  482;  Ward, 
"Psychic  Factors  of  Civilization,"  p.  299;  Tarda,  "Lois  de  I'lmitation,"  especially 
ch.  2. 

'  See  Georg  Meyer,  "The  Development  of  Political  Science  in  the  German 
Universities"  in  Lexis,  "Die  deutschen  Universitaten,"  vol.  I;  also  Jellinek,  "  Recht 
des  mod.  Staates,"  bk.  I,  ch.  2,  tit.  6  (Die  juristische  Methode  in  der  Staatslehre). 


26  POLITICAL   SCIENCE 

pure  logic  and  reason/  The  state  as  an  organism  of  growth 
and  development,  however,  cannot  be  understood  without 
a  consideration  of  those  extra-legal  and  social  forces  which 
lie  back  of  the  constitution  and  which  are  responsible  for 
many  of  its  actions  and  reciprocal  reactions.  Any  view, 
therefore,  which  conceives  the  state  merely  as  an  institu- 
tion of  public  law  is  as  narrow  and  fruitless  as  the  Hegelian 
doctrine  which  goes  to  the  opposite  extreme  and  considers 
it  merely  as  a  moral  entity.^ 
The  Com-  The  Comparative  method,  first  employed  by  Aristotle, 
M-thoY  later  by  Montesquieu  and  still  more  recently  by  De  Tocque- 
ville,  Laboulaye,  Bryce,  and  others,  aims  through  the  study 
of  existing  politics  or  those  which  have  existed  in  the  past 
to  assemble  a  definite  body  of  material  from  which  the 
investigator  by  selection,  comparison,  and  elimination  may 
discover  the  ideal  types  and  progressive  forces  of  political 
history.  Only  those  states  which  are  contemporaneous  in 
point  of  time,  as  Jellinek  remarks,  and  which  have  a  com- 
mon historical  basis  (Boden)  and  common  historical  politi- 
cal and  social  institutions  may  be  compared  with  advan- 
tage. The  comparative  method,  observes  M.  Saleilles,  a 
noted  French  publicist,  discovers  the  "general  current" 
which  runs  through  the  whole  body  of  constitutions  and 
upon  which  experience  has  set  the  stamp  of  approval.  "  Ce 
courant  general,''  he  declares,  ^^ on  le  decouvre  par  V etude 

^  "  Recht  des  mod.  Staates,"  p.  49.  For  more  detailed  studies  of  the  juridical 
method  see  JeUinek,  "System  der  subjektiven  offentlichen  Rechte,"  p.  21  et  seq., 
and  Deslandres,  op.  cit.  See  also  Michoud,  "Theorie  de  la  Personnalite  morale." 
An  excellent  example  of  the  use  of  the  juridical  method  is  found  in  Laband's 
brilliant  study  of  the  German  Empire,  "Staatsrecht  des  deutschen  Reiches."  This 
method,  as  Laband  states  it  in  the  preface  to  his  treatise,  is  that  of  "analysis  of  public 
law  relations,  the  establishment  of  the  juristic  nature  of  the  state,  the  discovery  of  gen- 
eral superior  juridical  principles  and  the  deduction  therefrom  of  conclusions."  For 
a  juristic  conception  of  the  nature  of  the  state  see  his  statement  regarding  the  nature 
of  the  German  Empire  in  the  preface  to  his  work. 

^  For  a  criticism  of  the  juridical  method  see  Deslandres,  op.  cit.,  pp.  108,  115. 
For  a  defense  of  it  see  Combothecra,  "La  Conception  juridique  de  I'Etat,"  and  Sari- 
polos,  "La  Democratie  et  I'Election  Proportionnelle." 


THE   METHODS    OF    POLITICAL   SCIENCE  27 

critique  de  chacune  des  legislations  etrangeres  envisagees  au 
point  de  vue  economique  et  social,  le  recherche  des  points  de 
contact  susceptibles  de  correspondre  a  un  courant  d' evolution 
commun  a  plusieurs  pays,  la  determination  d'un  ou  de 
plusieurs  types  juridiques  vers  lesquels  doive  s'orienter  la 
politique  juridique  des  differents  pays  a  etat  social  sensible- 
me?it  similaire."  *  The  danger  of  the  comparative  method 
Hes  in  the  HabiHty  to  error  to  which  it  is  susceptible  in 
practice,  since,  in  the  effort  to  discover  general  principles, 
the  diversity  of  conditions,  due  to  different  circumstances, 
such  as  the  temperament  and  genius  of  the  people,  economic 
and  social  conditions,  moral  and  legal  standards,  political 
training  and  experience,  are  apt  to  be  ignored  or  overlooked. 
J.  S.  Mill  has  undertaken  to  show  that  the  comparative 
method  may  assume  several  forms,  the  "most  perfect"  of 
which  is  the  process  of  difference  by  which  two  polities  iden- 
tical in  every  particular  except  one  are  compared  with  a 
view  to  discovering  the  effect  of  the  differing  factor.  Thus 
two  states  are  compared  which  are  similar  as  regards  their 
natural  wealth,  legal  systems,  racial  conditions,  etc.,  but 
one  of  which  maintains  a  restrictive  trade  system.  If, 
therefore,  one  is  found  to  be  prosperous  and  the  other  not, 
a  general  conclusion  is  postulated  with  regard  to  the  effect 
of  restrictive  commercial  policies  upon  the  national  pros- 
perity. The  m^ethod  of  indirect  difference  compares  two 
classes  of  "  instances  "  which  agree  in  nothing  but  the  pres- 
ence of  a  factor  on  the  one  side  and  its  absence  on  the 
other.  Thus  one  state  which  maintains  a  protective  system 
may  be  compared  with  two  or  more  states  which  have  noth- 
ing in  common  but  a  free  trade  policy.  By  the  method  of 
agreement  two  polities  wholly  different  with  the  exception  of 
two  common  factors  may  be  compared.  Thus  two  states 
agreeing  in  no  particular  except  in  having  a  restrictive  trade 
system  and  in  being  prosperous  are  compared  with  a  view 

^  "Conception  et  Objet  de  la  Science  du  Droit  compare,"  in  "Le  Bulletin  de  la 
Society  legislative  comparee  "  for  1900. 


28  POLITICAL    SCIENCE 

to  establishing  a  connection  between  the  restrictive  policy 
and  the  prosperity.  Like  the  method  of  difference,  it  is 
inadequate  because  its  results  are  likely  to  be  affected  by 
extraneous  circumstances,  or,  as  Bain  says,  by  a  "plurality 
of  causes  with  an  intermixture  of  effects."  ^ 
The  What  is  really  a  particular  form  of  the  comparative 

Historical    jjiethod  is  the  historical  method,  for  the  facts  relating  to 

Method  .  .  .  .     ° 

past  polities  have  little  value  for  political  science  until  they 
have  been  subjected  to  the  several  processes  of  treatment 
which,  as  stated  above,  may  be  comprehended  under  the 
general  term  "  comparison."  It  is  almost  a  commonplace 
to-day  to  affirm  the  necessity  of  historical  study  as  a  basis 
for  the  scientific  investigation  of  political  institutions 
which  have  historical  backgrounds.  They  can  be  fully 
comprehended  only  through  a  knowledge  of  their  past; 
how  they  have  developed,  how  they  have  become  what 
they  are  and  to  what  extent  they  have  responded  to  the 
purposes  for  which  they  were  originally  destined.^  The 
maxim  that  constitutions  grow  instead  of  being  made 
would  have  no  meaning  apart  from  this  truth.  The  his- 
torical method,  says  Sir  Frederick  Pollock,  "seeks  an  ex- 
planation of  what  institutions  are  and  are  tending  to  be, 
more  in  the  knowledge  of  what  they  have  been  and  how  they 
came  to  be  what  they  are,  than  in  the  analysis  of  them  as 
they  stand."  ^  It  brings  in  review  the  great  political 
movements  of  the  past,  traces  the  organic  development  of 
the  national  life,  inquires  into  the  growth  of  political  ideas 
from  their  inception  to  their  realization  in  objective  in- 
stitutions, discovers  the  moral  idea  as  revealed  in  history 
and  thereby  points  out  the  way  of  progress.*    M .  Deslandres, 

*  "  Deductive  and  Inductive  Logic,"  p.  565.  Sidgwick  is  an  ardent  believer  in  the 
comparative  method.  "  PoHtical  science,"  he  says,  "aims  at  bringing  together  for 
comparison  societies  similar  in  their  political  characteristics,  however  widely  sepa- 
rated in  time."     "Development  of  European  Polity,"  p.  3. 

'  For  a  discussion  of  the  nature  and  value  of  the  historical  method,  see  Jellinek, 
op.  cit.,  ch.  2,  tit.  5.  ^  "History  of  the  Science  of  Politics,"  p.  11. 

*  Compare  Bluntschli,  "AUgemeine  Staatslehre,"  bk.  I,  ch.  2. 


THE   METHODS   OF    POLITICAL   SCIENCE  29 

in  his  work,  "La  Crise  de  la  Science  politique  et  le  Probleme 
de  la  Methode,"  concludes  his  study  of  the  whole  problem 
of  methodology  with  the  following  estimate  of  the  his- 
torical method:  ''Puis,  si  fai  fait  appel  a  plusieiirs  dis- 
ciplines pour  constituer  la  methode  de  la  science  politique, 
j'ai  mis  tant  au  premier  rang  Vhistoire.  Ce  sont  done  des 
etudes  dliistoire  constitutionnelle,  que  fappelle  de  tons  mes 
vceux,  et  vers  lesquelles  je  voudrais  orienter  ceux  qui  compren- 
nent  que  la  science  politique  est  faite  pour  la  vie.  Car  Vhis- 
toire, c'est  la  science  de  la  vie  et  cest  V element  solide,  sans 
laquelle  la  science  politique  ne  peut  etre  que  fragile  et  hasar- 
deuse.''  ^ 

What  Professor  Seeley  calls  the  "irresistible  tempta- 
tion to  mix  up  what  ought  to  be  with  what  is"  finds  an 
illustration  in  the  ideas  of  Sidgwick  and  Pollock  (which 
were  also  the  ideas  of  Plato  and  Aristotle),  according  to 
which  the  main  object  of  political  science  is  the  discovery  of 
the  perfect  or  ideal  state.  To  realize  this  purpose,  political 
science  must  first  proceed  to  inquire  what  is  the  end  of  the 
state,  and  having  satisfactorily  answered  this  question,  must 
ascertain  what  institutions  and  laws  are  best  adapted  for  the 
attainment  of  this  end.    Seeley  criticises  this  method  as  un- 

'  p.  256.  A  less  favorable  opinion  of  the  historical  method  is  held  by  Sidgwick, 
who  maintains  that  the  primary  aim  of  political  science  is  to  determine  what  ought 
to  be  so  far  as  the  constitution  and  action  of  government  are  concerned  and  that  this 
end  cannot  be  discovered  by  a  historical  study  of  the  forms  and  functions  of  govern- 
ment. "I  do  not  think,"  he  says,  "that  this  historical  method  is  the  one  to  be  primarily 
used  in  attempting  to  find  reasoned  solutions  of  the  problems  of  practical  politics." 
Sidgwick,  however,  concedes  that  the  historical  method  has  a  place  in  the  science  of 
the  state.  "By  means  of  it,"  he  says,  "we  can  ascertain  the  laws  of  practical  evolution 
and  thus  forecast,  though  dimly,  the  future.  From  it  we  may  obtain  some  notion  of  the 
limits  within  which  any  practicable  ideal  is  coniined  and  the  kind  of  society  and  cir- 
cumstances for  which  the  political  institutions  of  the  future  will  have  to  be  adapted." 
"  Lastly,"  he  says,  "  we  may  learn,  partially  at  least,  which  of  the  elements  and  char- 
acteristics of  our  own  political  society  are  likely  to  increase  and  become  more  impor- 
tant as  time  passes  and  which  are  likely  to  decrease  and  become  less  important." 
"Development  of  European  Polity,"  p.  5;  also  "Elements  of  Politics,"  pp.  7-14.  Cf, 
also  Montague,  "Limits of  Individual  Liberty,"  p.  83,  who  says,  "The  true  method  is 
the  historical.   .  .  .     History  alone  can  supply  the  material  for  a  science  of  society." 


3° 


POLITICAL    SCIENCE 


natural  and  fruitless.  Instead  of  beginning  with  an  inquiry 
into  the  purpose  of  the  state  and  the  characteristics  of  the 
best  state,  he  would  proceed,  first,  with  classifying  the  states 
which  he  wished  to  study;  second,  with  analyzing  the  struc- 
ture of  a  particular  state  and  distinguishing  the  functions 
of  its  several  organs;  third,  with  tracing  its  growth  and 
development,  noting  any  abnormal  conditions  in  its  life 
history;  and,  fourth,  with  philosophizing  upon  the  nature 
of  the  state  in  general.  The  vast  mass  of  facts  collected 
by  different  observers  must  be  subjected  to  rigid  scientific 
tests.  "We  must,"  he  says,  "think,  reason,  generalize,  de- 
fine, and  distinguish;  we  must  also  collect,  authenticate, 
and  investigate.  If  we  neglect  the  first  process,  we  shall 
accumulate  facts  to  little  purpose,  because  we  shall  have  no 
test  by  which  to  distinguish  facts  which  are  important 
from  those  which  are  unimportant;  and,  of  course,  if  we 
neglect  the  second  process,  our  reasonings  will  be  baseless 
and  we  shall  but  weave  scholastic  cobwebs."  ^ 

V.     RELATION    OF    POLITICAL    SCIENCE   TO    OTHER    SCIENCES^ 

The  "Ai-  Political  science  is  not  the  only  science  which  deals  with 
Political  "^^^  ^^  organized  society,  for,  as  we  have  seen,  the  state 
Science  manifests  itself  under  the  forms  of  a  social  as  well  as  a  po- 
litical organism  and  indeed  is  not  without  a  psychical  and 
a  physical  element.  Although  an  autonomous  science  in 
the  sense  that  it  is  not  a  mere  discipline  of  some  other 
science,  it  does  not  stand  entirely  unrelated  to  other 
sciences  any  more  than  the  state  stands  isolated  in  the 
universe  of  phenomena.  We  can  no  more  understand 
political  science,   as  the  science  of  the  totality  of  state 

'  "Introduction  to  Political  Science,"  p.  19. 

*  For  a  more  detailed  consideration  of  this  subject  than  is  given  in  the  present 
chapter  see  two  articles  by  the  writer  entitled  "The  Relations  of  Political  Science,  " 
in  the  "  American  Journal  of  Sociology  "for  November,  1906;  and  "The  Relation  of 
Political  Science  and  Ethics,"  in  the  "  International  Journal  of  Ethics  "  for  January, 
1907. 


RELATION   TO   OTHER   SCIENCES  31 

phenomena,  without  a  knowledge  of  the  alHed  sciences 
or  disciplines,  than  we  can  comprehend  biology  without 
chemistry,  or  mechanics  without  mathematics/  Paul  Janet, 
a  noted  French  writer,  has  well  said  that  political  science  is 
"closely  connected  with  political  economy  or  the  science  of 
wealth;  with  law,  either  natural  or  positive,  which  occu- 
pies itself  principally  with  the  relations  of  citizens  one  to 
another;  with  history,  which  furnishes  the  facts  of  which 
it  has  need;  with  philosophy,  and  especially  with  morals, 
which  gives  to  it  a  part  of  its  principles."  ^  Other  writers, 
like  Jellinek,  have  treated  geography,  physical  anthro- 
pology, ethnology,  psychology,  and  ethics  as  among  the 
studies  auxiliary  to  political  science.'  Formerly  there 
was  a  disposition  to  exaggerate  and  emphasize  to  their 
common  detriment  the  independence  of  each  branch  of 
knowledge,  but  the  tendency  of  modern  thought  is  to  accen- 
tuate the  relations  instead  of  the  differences.  In  this  con- 
nection Sidgwick  has  aptly  remarked  that  it  is  for  the  good 
of  any  department  of  knowledge  or  inquiry  to  understand 
as  thoroughly  as  possible  its  relation  to  other  sciences  and 
to  see  clearly  what  elements  of  its  reasonings  it  has  to  take 
from  them  and  what  in  its  turn  it  may  claim  to  give 
them." 

First  of  all,   political   science   touches  at  many  points  Relation 
sociology,   which   may   be  described   as   the   fundamental   sociology 
social  science.     As  has  been  well  said,  the  political  is  em- 
bedded in  the  social,  and  if  political  science  remains  distinct 
from  sociology,  it  will  be  because  the  breadth  of  the  field 
calls  for  the  specialist,  and  not  because  there  are  any  well- 

'  Compare  the  views  of  Jellinek  on  this  point;  "Recht  des  mod.  Staates,"  bk.  I, 
ch.  4,  tit.  I;  also  Von  Mohl,  "Geschichte  und  Litteratur  der  Staatswissenschaften," 
vol.  I,  p.  I ;  and  Zacharia,  "Vierzig  Biicher  vom  Staate,"  vol.  I,  bks.  7-8,  where  the 
relation  between  political  science,  mechanics,  statistics,  and  chemistry  is  discussed 
at  length. 

*  Art.  "Politique,"  in  Block's  " Dictionnaire  de  la  Politique,"  vol.  II,  p.  576. 

*  Op.  ciL,  pp.  72-120. 

*  "Relation  of  Ethics  to  Sociology,"  "  Int.  Jour,  of  Ethics,"  vol.  X,  p.  8. 


32 


POLITICAL   SCIENCE 


The  Re- 
spective 
Domains 
of  Soci- 
ology and 
Political 
Science 


defined  boundaries  marking  it  off  from  sociology.'  While, 
however,  the  two  sciences  touch  at  many  points,  so  that 
there  are  no  natural  boundaries  between  them,  their  spheres 
have  been  pretty  definitely  differentiated  for  purposes 
of  scientific  investigation.  It  is  well,  therefore,  to  recog- 
nize that  the  domains  and  the  problems  of  the  two  sciences 
are  by  no  means  the  same. 

In  general,  we  may  say  that  sociology  Is  concerned  with 
the  scientific  study  of  society  viewed  as  an  aggregate  of 
individuals  (the  social  aggregate)  or,  as  has  been  said,  it  is 
the  "science  of  men  in  their  associated  processes";^  while 
political  science  deals  with  the  political  aspects  of  a 
particular  portion  of  society  viewed  as  an  organized 
unit.  Political  science  is  concerned  with  one  form  only 
of  human  association,  namely,  the  political;  it  has,  there- 
fore, a  narrower  and  more  restricted  field,  and  begins 
much  later  with  the  life  of  the  race  than  does  sociology. 
In  sociology  the  unit  of  investigation  is  the  socius,  that  Is, 
the  individual  viewed  not  merely  as  an  animal  and  a  con- 
scious being,  but  also  as  a  neighbor,  a  citizen,  a  coworker, 
in  short,  a  social  creature.^  In  political  science  the  unit 
of  study  Is  the  state  as  distinct  from  the  nation,  the  tribe, 
the  clan,  the  family,  or  the  individual,  though  not  uncon- 
nected with  them;  that  Is,  Its  primary  subj?ct  is  a  definite 
portion  of  society  which  manifests,  In  a  comparatively 
high  degree,  a  political  self-consciousness  and  which  has 
become  organized  politically. 

'  Ross,  "Foundations  of  Sociology,"  p.  22.  For  an  illuminating  discussion  of  the 
relations  of  sociology  with  other  sciences,  particularly  with  politics  and  economics, 
see  Small,  "American  Journal  of  Socijlogy,  "  July,  1906,  pp.  11-31. 

*  Small,  "General  Sociology,"  p.  7. 

*  Compare  Giddings,  "Elements  of  Sociology,"  p.  11 ;  Small,  "American  Journal 
of  Sociology,"  January,  1900;  Ward,  "Popular  Science  Monthly,"  June,  1902. 
Gumplowicz,  an  Austrian  economist  and  sociologist,  maintains  that  the  group  in- 
stead of  the  individual  is  the  unit  of  sociological  investigation.  He  has  worked  out 
an  interesting  sociological  theory  of  the  state  which  considers  social  groups  instead 
of  "  free  and  equal"  individuals  the  constituent  elements  of  the  state.  See  his  "Die 
sociologische  Staatsidee,"  p.  52;  also  his  "Sociologie  und  Politik,"  pp.  53-58. 


RELATION   TO    OTHER   SCIENCES 


33 


In  the  second  place,  political  science  is  closely  related  to  Relation 
history.  It  is,  as  Jellinek  remarks,  almost  a  commonplace  History 
to-day  to  affirm  the  necessit}^  of  historical  study  as  a  basis 
for  a  proper  understanding  of  institutions,  whether  they  be 
political,  legal,  or  social/  The  political  scientist  should 
study,  not  only  the  nature  of  political  institutions,  but  how 
they  have  developed  and  to  what  extent  they  have  fulfilled 
the  purposes  of  their  existence.  History  furnishes  us  in  a 
great  measure  the  materials  for  comparison  and  induction. 
This  is  especially  true  of  political  history,  which  concerns 
itself  with  the  formation  of  states,  their  growth,  and  their 
decline.  The  relationship  was  tersely  expressed  by  the 
late  Professor  Seeley,  who  said  "political  science  without 
history  is  hollow  and  baseless;  or  to  put  it  in  rhyme: 
history  without  political  science  has  no  fruit;  and  political 
science   without   history    has    no    root."^ 

While  history  furnishes  much  of  the  data  for  political  Problem  of 
science  it  is  not  true,  as  Freeman  once  declared,  that  science^ 
history  is  past  politics  or  that  politics  is  present  his- 
tory. Not  all  of  history  is  "past  politics."  Much  of  it  — 
like  the  history  of  art,  of  science,  of  inventions,  discoveries, 
military  campaigns,  language,  customs,  dress,  industries, 
religious  controversies  —  has  little,  if  any,  relation  to  poli- 
tics and  affords  no  material  for  political  investigation.' 
On  the  other  hand,  not  all  political  science  is  history. 
Much  of  it  is  of  a  purely  philosophical  and  speculative 

*"Recht  des  mod.  Staates,"  p.  41.  "Die  heschreihende  Grundlage  aller  Social- 
wissenschnft,  auch  der  Staatswissenscliaft,  ist  die  Geschichte,  welche  die  sociale  That- 
sachen  in  ihrem  historischen  Verlanfe  fest-  und  darstellt  sotvie  deren  dussere  tirid 
innere  Verkniipfung  nachweist."     Op.  cit.,  p.  8. 

^  "Introduction  to  Political  Science,"  p.  4.  Compare  the  following  from  Lord 
Acton:  "The  science  of  politics  is  the  one  science  that  is  deposited  by  the  stream  of 
history  like  the  grains  of  gold  in  the  sands  of  a  river;"  also  "the  student  of  history 
is  a  politician  with  his  face  turned  backward." 

'  We  have,  as  Professor  Small  observes,  "  histories  of  everything  from  civilization 
to  coinage  —  histories  of  church  doctrine,  military  tactics,  language,  painting,  prosti- 
tution, and  even  of  the  devil "  ("  American  Journal  of  Sociology,"  July,  1906,  p.  18). 
It  would,  of  course,  be  preposterous  to  assert  that  such  "history"  is  "past  politics." 
POL.  SCI.  —  3 


34  POLITICAL   SCIENCE 

character,  and  cannot  therefore  be  assigned  to  the  category 
of  history.  The  function  of  history  is  to  narrate  and  inter- 
pret a  succession  of  events;  to  discover  how  institutions 
have  persisted  and  changed  from  generation  to  generation ; 
to  trace  tendencies  and  laws  of  growth.  It  is  not  restricted 
in  its  sphere  to  those  parts  of  society  which  manifest  po- 
litical consciousness  and  which  have  received  political 
organization,  but  deals  with  the  record  of  man  prior  to 
as  well  as  subsequent  to  the  organization  of  the  state. 
The  function  of  political  science,  historically  considered, 
is  to  explain  political  institutions,  and  it  is  concerned  only 
with  that  part  of  history  which  is  capable  of  throwing  light 
upon  their  present  character.  According  to  certain  writ- 
ers, its  principal  problem  is  the  teleological  one  of  deter- 
mining what  ought  to  he,  so  far  as  the  constitution  and 
functions  of  government  are  concerned,  while  history  is 
concerned  with  what  has  been}  Thus,  although  their 
problems  are  distinct,  they  have  a  common  subject  in  the 
phenomena  of  the  state,  and  therefore  their  spheres  touch 
at  many  points  and  overlap  at  others.  To  fully  compre- 
hend political  science  in  its  fundamental  relations  we  must 
study  it  historically,  and  to  interpret  history  in  its  true  sig- 
nificance we  must  study  that  politically.  As  studies  they 
are  therefore  mutually  contributory  and  supplementary. 
"Politics  are  vulgar,"  said  Professor  Seeley,  "when  not 
liberalized  by  history,  and  history  fades  into  mere  litera- 
ture when  it  loses  sight  of  its  relation  to  politics."^  Sepa- 
rate them,  says  Burgess,  and  the  one  becomes  a  cripple, 
if  not  a  corpse,  the  other  a  will-of-the-wisp.^  Seeley  con- 
ceived history  to  be  the  name  of  the  residuum  which  is 
left  when  one  group  of  facts  after  another  has  been  taken 

*  Sidgwick,  "Elements  of  Politics,"  p.  7;  also  "  Development  of  European 
Polity,"  p.  5. 

^"Introduction  to  Political  Science,"  p.  4. 

^  "Relation  of  History  to  Political  Science,"  Annual  Report  American  Historical 
Association,  1896,  vol.  I,  p.  211. 


RELATION   TO   OTHER   SCIENCES  35 

possession  of  by  some  science.  Ultimately,  he  says, 
a  science  will  take  possession  of  the  residuum,  and  this 
science  will  be  political  science.  Many  of  the  facts  of 
history,  he  points  out,  are  no  longer  recorded  in  historical 
treatises,  but  have  been  appropriated  by  other  sciences. 
Thus  the  facts  of  the  past  relating  to  meteorology,  biol- 
ogy, hygiene,  surgery,  and  various  other  sciences  and  arts 
are  not  recorded  in  historical,  but  in  scientific  treatises. 
Physiology  has  taken  possession  of  a  definite  group  of  his- 
torical facts;  pathology,  of  another;  political  economy 
is  appropriating  the  facts  of  industry;  jurisprudence,  of 
law;  etc.  If  this  process  of  appropriation  continues,  all 
the  facts  of  history  in  the  end  will  be  swallowed  up.^  Al- 
ready historians  deal  meagerly  with  the  facts  regarding  the 
phenomena  of  the  sciences  and  arts,  contenting  themselves 
with  referring  the  reader  to  some  special  treatise  for  infor- 
mation. 

With  political  economy,  — or  economics,  to  use  the  more  Relation 
modern  term,  — political  science  is  closely  related ;   indeed,   caiEcon- 
it  is  classed  as  a  branch  of  political  science  by  at  least  one  °™y 
noted  economist.^     It  was  first  called  "political"  economy 
by  the  Greeks,  and  was  defined  by  them  as  the  art  of  pro- 
viding revenue  for  the  state. ^     Senior  remarks  that  as  late 
as  the  eighteenth  century  political  economy  was  regarded 
as  a  branch  of  statesmanship  particularly  by  the  physio- 
crats, and  that  those  who  assumed  the  name  of  political 
economists  avowedly  treated,  not  of  wealth,  but  of  govern- 
ment.*    His    own    conception    of    the    scope    of    political 
economy  was  affected  by  this  view,  and  he  laid  it  down  as  a 
principle  that  this  science  involved  a  "consideration  of  the 
whole  theory  of  morals,  of  government,  and  of  civil  and 
criminal  legislation." 

'  op.  cit.,  p.  12. 

^  Dugald  Stewart,  "  Lectures  on  Political  Economy,"  vol.  I,  p.  24. 
^  Seligman,    "Principles    of    Economics,"    p.    7;     Hadley,    "Relation    between 
Politics  and  Economics,"  Publications  of  the  American  Economic  Association,  1899. 
*  "Political  Economy,"  p.  i. 


36 


POLITICAL   SCIENCE 


Interac- 
tion of 
Politics 
and  Eco- 
nomics 


The  first  systematic  English  writer  on  the  subject,  Sir 
James  Stewart,  in  his  "Inquiry  into  the  Principles  of  Po- 
litical Economy"  (published  in  1767),  enunciated  this 
view  when  he  said:  "What  economy  is  in  the  family, 
political  economy  is  in  the  state.  .  .  .  The  great  art, 
therefore,  of  political  economy  is  first  to  adapt  the  differ- 
ent operations  of  it  to  the  spirit,  manners,  habits,  and 
customs  of  the  people,  and  afterward  to  model  these 
circumstances  so  as  to  be  able  to  introduce  a  set  of 
new  and  more  useful  institutions." '  Nine  years  later, 
Adam  Smith  published  his  "Inquiry  into  the  Nature 
and  Causes  of  the  Wealth  of  Nations,"  in  which  he  stated 
the  objects  of  political  economy,  "considered  as  a  branch 
of  the  science  of  a  statesman,"  to  be  two:  first,  to  provide 
adequate  "revenue  or  substance  for  the  people  or,  more 
properly,  to  enable  them  to  provide  it  for  themselves"; 
and,  second,  to  supply  the  state  or  commonwealth  "with  a 
revenue  sufficient  for  the  public  service."  "It  proposes," 
he  said,  "to  enrich  both  the  people  and  the  sovereign."  ^ 

Without  quoting  further  from  the  earlier  writers,  it  is 
clear  that  they  conceived  economics  to  be  a  branch  of  the 
general  science  of  the  state.  Writers  of  the  present  day- 
no  longer  hold  to  the  earher  conception,  yet  there  is  no 
difference  of  opinion  among  them  concerning  the  existence  of 
a  close  relationship  of  economics  and  politics  as  ancillary 
social  sciences.  Political  and  social  life  is  obviously  in- 
termixed with,  and  the  activities  and  even  the  forms  of 
government  are  profoundly  influenced  by,  economic  condi- 
tions. Conversely,  there  is  a  distinct  interaction  of  poli- 
tics upon  economics.      The  production  and  distribution  of 

*  Works,  vol.  I,  pp.  2,  3. 

*  Book  IV,  Introduction.  It  may  not  be  out  of  place  to  mention  that  Smith, 
as  a  professor  at  Glasgow  (1751-64),  lectured  on  natural  theology,  ethical  philosophy, 
jurisprudence,  and  political  economy,  indicating  that  these  subjects  were  considered 
to  be  not  only  related,  but  actually  complementary  to  each  other.  Compare  Mill, 
"Political  Economy,"  vol.  I,  p.  3;  and  Sidgwick,  "The  Principles  of  Political  Econ- 
omy," pp.  14-16. 


RELATION   TO   OTHER   SCIENCES  37 

wealth  are  to  some  extent  determined  by  the  existing  forms 
of  government/  The  solution  of  many  economic  problems 
must  come  through  political  channels,  while,  on  the  other 
hand,  some  of  the  fundamental  problems  of  the  state 
have  their  origin  in  economic  considerations.  Thus  tariff 
laws  and  trade  restrictive  acts,  generally,  are  favored  or 
opposed  largely  on  economic  grounds  and  to  a  great  extent 
the  whole  question  of  the  relation  between  government  and 
liberty  is  at  bottom  an  economic  problem.  The  burning 
questions  of  present-day  politics:  government  control  of 
public  utilities,  the  relation  of  the  state  to  corporate  enter- 
prise, and  its  attitude  toward  the  whole  question  of  capital 
and  labor,  are  at  the  same  time  fundamentally  questions  of 
economics;  indeed,  the  whole  theory  of  government  admin- 
istration is  largely  economic. 

■  It  is  no  doubt  true,  says  Nicholson,  that  the  system  of  government  "operates 
on  economic  facts,"  and  that  "economic  history  furnishes  endless  examples  of  the 
injurious  effects  of  bad  government."    "  Principles  of  Political  Economy,"  p.  13. 


CHAPTER   II 

THE  NATURE  OF  THE  STATE 

Suggested  Readings:  Bluntschli,  "Allgemeine  Staatslehre,"  bk. 
I,  ch.  i;  bk.  II,  chs.  2-4;  also  his  "  Psychologische  Studien  liber 
Staat  und  Kirche,"  pp.  1-87;  Bornhak,  "Allgemeine  Staatslehre," 
pp.  8-15;  Burgess,  "Political  Science  and  Constitutional  Law,"  vol. 
I,  chs.  1-4;  bk,  II,  ch.  i;  Carnazza-Amari,  "  Traite  de  Droit  inter- 
national public,"  vol.  I,  pt.  I,  chs.  I  and  2;  Duguit,  "  Droit  constitu- 
tionnel,"  sees.  8-13;  20-22;  also  his  "L'Etat,  Les  Gouvernants  etLes 
Agents,"  ch.  i;  Fouillee,  "La  Science  sociale  contemporaine,"  chs.  2 
and  3;  Funck-Brentano,  "La  Politique,"  ch.  2;  Gumplowicz,  "  All- 
gemeines  Staatsrecht,"  bk.  I,  chs.  i  and  4;  Held,  "  Staatsrecht,"  ch. 
I;  also  his  "  System  des  Verfassungsrechts,"  ch.  6;  Holland,  "Ele- 
ments of  Jurisprudence,"  ch.  4;  Jellinek,  "Recht  des  modernen' 
Staates,"  bk.  II,  ch.  6;  also  his  "  System  der  subjektiven  offentlichen 
Rechte,"  pp.  12-41 ;  Leacock,  "Elements  of  Political  Science,"  ch.  i; 
Lecky,  "Democracy  and  Liberty,"  vol.  I,  ch.  5;  Leroy-Beaulieu, 
"The  Modern  State,"  chs.  1-5;  McKechnie,  "The  State  and  the 
Individual,"  pt.  I,  ch.  i;  MacKenzie,  "Introduction  to  Social  Phi- 
losophy," ch.  3;  Merignhac,  "Traite  de  Droit  int.  pub.,"  vol.  I,  pp. 
1 17-154  ;  Meyer,  "  Deutsches  Staatsrecht,"  sees.  2  and  3  ;  Mulford, 
"  The  Nation,"  ch.  i  ;  Posado,  "Tratado  de  Derecho  Politico,"  vol.  I, 
ch.  i;  Rehm,  "  Allgemeine  Staatslehre"  in  Marquardsen,  Einlei- 
timgsband  II,  sees.  3-5;  Rousseau,  "Contrat  social,"  bk.  Ill,  ch.  10; 
Bruno  Schmidt,  "Der  Staat";  Richard  Schmidt,  "Allgemeine 
Staatslehre,"  vol.  I,  sec.  25;  Schulze,  "Deutsches  Staatsrecht,"  vol.  I, 
ch.  I  ;  Seeley,  "Introduction  to  Political  Science,"  lects.  I  and 
II ;  Seydel,  "Grundziige  einer  allgemeine  Staatslehre,"  pp.  1-18; 
Spencer,  "Principles  of  Sociology,"  vol.  I,  pt.  II,  chs.  3,  4,  7-9; 
Treitschke,  "Politik,"  vol.  I,  sec.  I  ;  Waitz,  "Grundziige  der  Poli- 
tik,"  pp.  1-20;  Willoughby,  "The  Nature  of  the  State,"  chs.  i  and 
2  ;  Woolsey,  "Political  Science,"  vol.  I,  pt.  II,  chs.  i  and  2; 
Worms,  "Organisme  et  Societe,"  pts.  II  and  III. 

I.     DEFINITIONS   AND   DISTINCTIONS 

Definitions  of  the  state,  as  the  German  writer  Schulze 
has  remarked,  are  innumerable,  almost  every  author  hav- 
ing his  own,  and  scarcely  any  two  being  alike/ 

*  "Deutsches  Staatsrecht,"  vol.  I,  p.  15. 
38 


DEFINITIONS   AND   DISTINCTIONS  39 

The  English  writer  Holland  defines  a  state  as  a  "numer-  Defini 
ous  assemblage  of  human  beings,  generally  occupying  a  thTstete 
certain  territory,  among  whom  the  will  of  the  majority  or 
of  an  ascertainable  class  of  persons  is  by  the  strength  of 
such  a  majority  or  class  made  to  prevail  against  any  of 
their  number  who  oppose  it."  ^  Hall,  viewing  the  state 
primarily  as  a  concept  of  international  law,  says,  "The 
marks  of  an  independent  state  are  that  the  community 
constituting  it  is  permanently  established  for  a  political 
end,  that  it  possesses  a  defined  territory  and  that  it  is  inde- 
pendent of  external  control."  ^ 

The,  German  writer  Seydel  says,  "A  state  comes  into 
existence  whenever  a  number  of  men  who  have  taken  pos- 
session of  a  part  of  the  earth's  surface  unite  themselves  to- 
gether under  a  higher  will."  ^  Grotius  defined  the  state 
(civitas)  as  a  "perfect  society  of  free  men  united  for  the 
sake  of  enjoying  the  advantages  of  right  and  the  common 
utility."  ^  Vattel,  in  almost  the  same  language,  defined  it 
as  a  "body  politic  or  society  of  men  who  seek  their  well- 
being  and  common  advantage  in  the  combination  of  their 
forces."^  Burgess  defines  the  state  as  a  "particular 
portion  of  mankind  viewed  as  an  organized  unit,""  which 
is  substantially  the  same  as  the  definition  given  by  Blunt- 
schli,  who  says,  "The  state  is  the  politically  organized  people 
of  a   definite   territory."  ^     The   United    States    Supreme 

'  "Elements  of  Jurisprudence  "  (6th  ed.),  p.  40. 

^  "International  Law  "  (3d  ed.),  p-  18. 

'  "Grundziige  einer  allgemeine  Staatslehre,"  p.  i ;  see  also  p.  4. 

*  "De  Jure  Belli  et  Pacis,"  bk.  I,  ch.  i,  sec.  13  (Whewell's  ed.,  p.  18). 

*  "Droit  des  Gens,"  vol.  I,  sec.  i.  Wheaton  defines  the  state  in  substantially 
the  same  words,  "Elements  of  the  Law  of  Nations,"  ch.  2,  sec.  2.  Grotius's, 
Vattel's,  and  Wheaton's  definitions  are  drawn  from  Cicero's  definition  of  the 
respuhlica  as  a  "numerous  society  united  by  a  common  sense  of  right  and  a  mutual 
participation  in  advantages,"  "  De  Republica, "  bk.  I,  25.  For  a  criticism  of 
Cicero's  definition,  see  Calvo,  "Droit  int.  theoriqueet  pratique,"  vol.  I,  p.  168,  and 
Pradier-Fodere,  "Traite  de  Droit  int.  pub.,"  vol.  I,  p.  146. 

'  "Political  Science  and  Constitutional  Law,"  vol.  I,  p.  50. 

^"Allgemeine  Staatslehre,"  vol.  I,  p.  24;  also  his  "  Psychologische  Studien," 
p.  22. 


40  THE  NATURE  OF  THE  STATE 

Court  in  an  early  case  defined  a  state  as  "a  body  of  free 
persons  united  together  for  the  common  benefit,  to  enjoy 
peaceably  what  is  their  own  and  to  do  justice  to 
others."  ' 

Phillimore  says  a  state  for  all  purposes  of  international 
law  is  "a  people  permanently  occupying  a  fixed  territory, 
bound  together  by  common  laws,  habits,  and  customs  into 
one  body  politic,  exercising  through  the  medium  of  an  or- 
ganized government  independent  sovereignty  and  control 
over  all  persons  and  things  within  its  boundaries,  capable 
of  making  war  and  peace  and  of  entering  into  all  inter- 
national relations  with  the  communities  of  the  globe."  ^ 
Other  writers  have  emphasized  the  spiritual  and  moral 
nature  of  the  state  to  the  neglect  of  its  other  aspects. 
Thus  Hegel  defined  it  as  "the  incorporation  of  the  objec- 
tive spirit  "  {die  Verkorperung  des  objektiven  Geistes) ;  while 
Pufendorf  conceived  it  to  be  simply  "a  moral  person 
endowed  with  a  collective  will."  Such  definitions  are 
manifestly  based  on  a  one-sided  view  of  the  state  and  con- 
sequently bring  out  but  one  of  its  many  characteristics.' 

'  Chisholmi'.  Ga.,  2  Dall.  456. 

*  "International  Law"  (3d  ed.),  vol.  I,  p.  8^ 

'  Other  definitions  are  the  following:  "The  state  is  the  mastery  over  land  and 
people  which  are  independent  of  every  earthly  power,"  Bornhak,  "AUgemeine 
Staatslehre,"  p.  9;  "The  state  is  the  bodily  form  of  the  spiritual  community  of  the 
nation,"  Savigny,  "System  des  romischen  Rechts,"  vol.  I,  p.  22;  "A  state  is  an  ag- 
gregation of  families  and  their  common  possessions  ruled  by  a  sovereign  power  ac- 
cording to  reason,"  Bodin,  "  De  Republica,"  bk.  6 ;  "When  a  people  possessing  a  fixed 
home  unite  themselves  under  a  common  and  supreme  legislative,  executive,  and  judi- 
cial power  which  fixes  and  guarantees  their  rights,  they  form  a  state,"  G.  F.  de  Martens, 
"Precis  du  Droit  des  Gens,"  vol.  I,  sec.  3;  "A  state  is  a  certain  number  of  men  and 
of  families  who,  being  united  and  having  a  fixed  home,  associate  themselves  and  sub- 
mit themselves  to  a  common  chief  with  the  intention  of  li\-ing  together  for  the  safety 
of  all,"  Kluber,  "Droit  des  Gens,"  sec.  20;  "The  state  is  a  permanent  association  of 
men  united  and  governed  by  a  common  will  for  the  purpose  of  providing  for  their 
common  physical  and  moral  necessities,"  HefFter,  "Droit  int.  de  I'Europe,"  sec.  15; 
"The  state  is  a  permanent  unitary  organism  whose  arrangements,  directed  by  a 
collective  will  as  well  as  supported  and  executed  by  common  strength,  has  for  its 
problem  the  promotion  of  the  life  purposes  of  a  definite  population,"  Von  Mohl,  "En- 
cyklopadie  der  Staatswissenschaften,"  p.  71;   "The  state  is  a  group  of  men  more 


DEFINITIONS   AND    DISTINCTIONS  41 

If  one  more  definition  may  be  added  to  the  long  list 
already  given,  I  would  offer  the  following:  The  state,  as  a 
concept  of  political  science  and  constitutional  law,  is  a 
community  of  persons  more  or  less  numerous,  permanently 
occupying  a  definite  portion  of  territory,  independent  of 
external  control  and  possessing  an  organized  government  to 
which  the  great  body  of  inhabitants  render  habitual  obedi- 
ence. The  essential  constituent  elements,  political,  phys- 
ical, and  spiritual,  of  the  modern  state  are  all  brought  out 
in  this  definition.  They  are:  first,  a  group  of  persons  act- 
ing together  for  common  purposes;  second,  the  occupation 
of  a  determinate  portion  of  the  earth's  surface  which  con- 
stitutes the  home  (or,  as  the  Germans  say,  the  Boden)  of 
the  population ;  third,  independence  of  foreign  control ;  and 
fourth,  a  common  supreme  authority  or  agency  through 
which  the  collective  will  is  expressed  and  enforced.^ 

or  less  numerous,  united  under  common  institutions  and  under  the  same  sovereign," 
Laveleye,  "Le  Gouvernement  dans  la  Democratie,"  vol.  I.  p.  19;  "A  state  is  an  inde- 
pendent community  organized  in  a  permanent  manner  in  a  definite  territory," 
Rivier,  "Principes  du  Droit  des  Gens,"  vol.  I,  p.  45;  "The  state  is  the  union  of  a 
living  people  in  a  collective  personality  {gesamte  Personlichkcit)  under  a  supreme 
power  and  a  definite  constitution  for  the  realization  of  all  common  purposes, 
especially  the  establishment  of  the  legal  order  (Herrslellung  des  Rechtsordnung)," 
Schulze,  "Deutsches  Staatsrecht,"  vol.  I,  p.  19.  For  a  somewhat  similar  definition, 
see  Jellinek,  "  Recht  des  mod.  Staates,"  p.  173. 

'  Compare  Hall  ("International  Law,"  p.  21),  who  says,  "The  simple  fact  that  a 
community  in  its  collective  capacity  exercises  independent  and  exclusive  control  over 
all  persons  and  things  within  the  territory  occupied  by  it,  that  it  regulates  its  externa! 
conduct  independently  of  the  will  of  any  other  community  and  in  conformity  with 
the  dictates  of  international  law,  and  finally  that  it  gives  reason  to  expect  that  its 
existence  will  be  permanent,  are  sufficient  to  render  it  a  person  in  law."  See  also 
Bornhak  ("  Allgemeine  Staatslehre,"  p.  8),  who  says  "  three.factors  are  necessary  to 
the  concept  of  the  state :  a  definite  territory,  a  population  attached  thereto,  and  the  sub- 
jection of  both  to  a  supreme  magistracy ; "  also  Seydel,  "Grundziige  einer  allgemeinen 
Staatslehre,"  p.  4;  Pradier-Fodere,  "Traitede  Droit  int.  pub.,"  vol.  i,  p.  152;  Jellinek, 
op.  ciL,  p.  137 ;  and  Carnazza-Amari,  "  Droit  int.  pub.,"  vol.  I,  p.  196.  Willoughby 
("Nature  of  the  State,"  p.  4)  enumerates  the  essential  elementsof  the  state  as  :  "first, 
a  community  of  people  socially  united ;  second,  a  political  machinery  termed  a  govern- 
ment and  administered  by  a  corps  of  officials  termed  a  magistracy  and,  third,  a  body  of 
rules  or  maxims,  written  or  unwritten,  determining  the  scope  of  this  public  authority 
and  the  manner  of  its  exercise."     Hauriou  enumerates  the  constituent  elements  of 


42 


THE   NATURE   OF   THE   STATE 


Ancient 
Concep- 
tions of 
the  State 


Various 
Meanings 
of  the 
Term 
"State" 


The  term  by  which  the  ancient  Greeks  designated  the 
state  was  polls  {ttoXls:),  the  modern  EngHsh  equivalent 
of  which  is  "city."  They  never  grasped  the  idea  of  the 
territorial  or  country  state.  Their  political  science  was,  as 
has  been  said  in  the  preceding  chapter,  the  science  of  city 
states,  for  it  was  with  the  city  that  their  state  life  was  iden- 
iified.  To  the  Romans  likewise  the  state  was  the  civitas 
or  respublica.  To  them  the  Roman  state  was  identical 
with  the  city  of  Rome,  Italy  and  the  provinces  being  only 
dependencies  of  the  mother  city.  The  conception  of  the 
state  as  embracing  non-urban  land  or  country  territory 
made  its  appearance  slowly  during  the  Middle  Ages.  In 
Germany  the  coming  into  use  of  such  terms  as  Landtag, 
Landesstaatsrecht  and  Landesgesctz  indicated  the  new  con- 
ception of  the  state  as  a  territorial  instead  of  an  urban 
commonwealth.^ 

The  word  "state"  (stato)  first  appeared  in  Italian  po- 
litical literature  and  presently  came  to  be  applied,  not  to  the 
city  community  alone,  but  also  to  the  country  territory 
embraced  within  the  jurisdiction  of  the  governing  city.^ 
In  the  course  of  the  sixteenth  and  seventeenth  centuries 
the  words  state,  Hat,  Staat,  appeared  in  English,  French,  -T-id 
German  literature,  though  in  France  Bodin  as  late  as  1576 
preferred  the  term  "republic"  (republique)  as  the  subject 
of  his  famous  treatise. 

Regarding  the  meaning  of  the  term  "state,"  we  may 
observe  that  it  has  a  popular  signification  and  a  meaning 
technical  to  political  science.  In  the  popular  sense  the 
term  is  often  used  synonymously  with  "nation,"  "society," 


the  state  as  (i)  population,  (2)  territory,  and  (3)  a  certain  degree  of  civilization  or 
political  consciousness  including  a  fair  degree  of  economic  development.  "  Droit 
administratif,"  pp.  6-7.  According  to  Rivier  the  essential  elements  are  (i)  territory 
and  population,  (2)  a  collective  will  and  government,  (3)  independence  and  perma- 
nence.    "Principes  du  Droit  des  Gens,"  vol.  I,  p.  46. 

*  Cf.  Jellinek,  "Recht  des  mod.  Staates,"  p.  125. 

^  See  Nys,  "L'Etat  et  la  nation  de  I'fitat,"  "Revue  de  Droit  int.,"  1901,  pp 
420  ff. 


DEFINITIONS   AND   DISTINCTIONS  43 

"country,"  "power,"  "government,"  etc/  Technically 
it  has  a  more  precise  and  exact  meaning  which  is  not  indi- 
cated by  any  of  the  above  terms.  It  is  very  commonly 
employed  to  express  the  idea  of  the  collective  action  of  soci- 
ety as  contradistinguished  from  individual  action,  as  when 
we  speak  of  "state"  aid  to  education,  "state"  interven- 
tion in  industrial  affairs,  etc.  In  states  having  the  federal 
system  of  government  the  term  possesses  a  double  signifi- 
cation, being  employed  to  designate  the  federation  as  a 
whole  and  also  the  autonomous  political  communities 
composing  it.  A  still  narrower  and  obviously  incorrect 
use  of  the  term  is  its  employment  to  designate  non-autono- 
mous provinces  of  monarchical  states  as  is  done  in  Prussia 
and  Austria.  The  effect  of  this  somewhat  loose  dualistic 
employment  of  the  term  to  designate  both  the  real  state  and 
its  subdivisions  is  to  introduce  confusion  into  the  termi- 
nology of  political  science,  and  misconceptions  into  political 
thinking.^  It  is  unfortunate  that  neither  the  English,  the 
German,  nor  the  French  language  contains  a  suitable  term 
by  which  the  component  members  of  federal  unions  may 
be  designated  and  a  different  one  for  describing  the  larger 
commonwealth  of  which  they  are  the  constituent  parts. 
Finally,  the  fact  that  the  state  is  both  a  concept  of  consti- 
tutional law  and  of  international  law  has  led  to  additional 
ambiguity  of  usage. 

In  the  next  place,  we  must  distinguish  between  the  terms  The  Dis- 
" state"  and  "government"  often  employed  by  political  |,'"tween 
writers  as  if  they  were  identical  in  meaning.     In  reality  state  and 

■'  »  ./     Govern- 

'  Rousseau,  in  his  "  Le  Contrat  social  "  (bk.  I,  ch.  6),  suggests  the  employment  of    ment 
the  term  "state"  when  the  commonwealth  is  conceived  as  passive;  the  term  "  sover- 
eign" when  it  is  thought  of  as  active;  and  the  term  "power"  when  it  is  compared 
with  its  equals. 

^Burgess,  in  his  "Political  Science  and  Constitutional  Law,"  dwells  upon  the 
confusion  and  inaccuracy  resulting  from  this  dual  use  of  the  term  "state,"  and  seeks 
to  avoid  it  himself  by  designating  the  individual  members  of  federal  unions  as  "com- 
monwealths" and  by  restricting  the  use  of  the  word  "state"  to  the  federation  as  a 
whole.  Cf.  also  Woolsey,  "Political  Science,"  vol.  I,  p.  141,  and  Jellinek,  op.  cit., 
p.  129. 


44  THE   NATURE   OF   THE   STATE 

they  represent  widely  different  concepts  and  upon  the 
recognition  of  the  distinction  between  them  depends  the 
true  understanding  of  some  of  the  most  fundamental  ques- 
tions of  political  science.  As  has  already  been  remarked, 
the  state  is  a  sovereign  community,  politically  organized 
for  the  promotion  of  common  ends  and  the  satisfaction  of 
common  needs,  while  the  government  is  the  collective  name 
for  the  agency,  magistracy,  or  organization,  through  which 
the  will  of  the  state  is  formulated,  expressed,  and  realized. 
The  government  is  an  essential  element  or  mark  of  the  state, 
but  it  is  no  more  the  state  itself  than  the  brain  of  an  animal 
is  itself  the  animal,  or  the  board  of  directors  of  a  corporation 
is  itself  the  corporation.  In  earlier  times,  it  was  not  un- 
common to  identify  the  ruling  sovereign  with  the  state  and 
the  famous  saying  attributed  to  Louis  XIV  {Vetat,  c'est 
moi)  has  often  been  quoted  as  an  example  of  such  identi- 
fication. If  the  government  and  state  were  identical, 
the  death  of  the  reigning  sovereign  or  the  overthrow  of  the 
government  would  necessarily  interrupt,  if  not  destroy,  the 
continuity  of  the  state  life.^  But  as  a  matter  of  fact 
changes  of  governmental  organization  do  not  affect  the 
existence  of  the  state.  States  possess  the  quality  of  perma- 
nence. Governments,  on  the  contrary,  are  not  immortal; 
they  are  constantly  undergoing  change  as  a  result  of  revolu- 
tion, of  the  extinction  of  dynasties,  or  through  legal  pro- 
cesses, yet  the  state  continues  unimpaired  and  unaffected. 
Governments  are  mere  "contrivances,"  to  use  the  language 
of  Professor  Seeley,  through  which  the  state  manifests 
itself.  They  possess  no  sovereignty,  no  original  unlimited 
authority,  but  only  derivative  power  delegated  by  the  state 
through  its  constitution.  To  understand  clearly,  there- 
fore, the  nature  of  each  and  the  relation  of  one  to  the 
other  we  must  avoid  identifying  them  either  in  thought 
or  treatment. 

^  Compare  Jellinek,  "Recht  des  mod.  Staates,"  p.  140. 


STATE    AND    NATION  4$ 

II.     STATE  AND  NATION;    THE   PRINCIPLE    OF    NATIONALITY 
IN   THE   ORGANIZATION    OF   STATES 

In  the  next  place,  the  state  must  be  distinguished  from  Distinc- 
the  nation.  Primarily  the  state,  as  has  been  said,  is  a  legal  Jjjjeen*' 
or  political  concept,  while  the  nation,  if  the  natural  meaning  state  and 
suggested  by  the  etymological  derivation  of  the  word 
(nasci,  natio)  be  regarded,  is  a  racial  or  ethnical  concept. 
There  is  no  necessary  connection  between  the  two,  and  the 
best  writers  never  employ  the  terms  synonymously  and  with- 
out discrimination.  In  reality  a  nation  is  not  a  portion  of 
society  politically  organized ;  that  is,  it  is  not  a  state,  but  in 
its  perfect  form  it  is  a  portion  of  society  definitely  separated 
from  the  rest  of  the  world  by  natural  geographical  boun- 
daries, the  inhabitants  of  which  have  a  common  racial  ori- 
gin, speak  the  same  language,  have  a  common  civilization, 
common  customs  and  traits  of  character,  and  a  common 
literature  and  traditions.  This  is,  as  has  been  said,  the 
perfect  nation,  not  the  actual  nation  as  it  exists  in  the  world 
to-day  and  which  popular  usage  conceives  it  to  be.  Some 
authorities,  however,  do  not  consider  all  the  elements  men- 
tioned above  as  absolutely  essential  to  the  existence  of  a 
nation.  Thus  Burgess  defines  a  nation  as  a  population 
having  a  common  language  and  literature,  a  common  tra-  The  Marks 
dition  and  history,  common  customs  and  a  common  con-  0**^*^0° 
sciousness  of  rights  and  wrongs,  inhabiting  a  territory  of  a 
geographic  unity.*  He  does  not  seem  to  consider  common 
descent  or  identity  of  race  as  an  essential  element  but  regards 
community  of  speech  and  geographic  unity  as  the  principal 
distinguishing  marks.  The  French  publicist,  Pradier-Fodere, 
defines  a  nation  as  "the  union  of  a  society  of  inhabitants  of 
the  same  country,  speaking  the  same  language,  governed  by 
the  same  laws,  connected  by  identity  of  origin,  physical  char- 
acteristics, and  moral  dispositions,  by  community  of  interests 
and  sentiments  and  by  a  fusion  of  existences  acquired  by  the 

^  "Political  Science  and  Constitutional  Law,"  vol.  I,  p.  2. 


46  THE    NATURE    OF    THE   STATE 

lapse  of  centuries."  ^  Again  he  says,  "Affinity  of  race,  com- 
munity of  language,  of  habits,  of  customs  and  religion,  are 
the  elements  which  constitute  the  nation."  ^  Calvo,  in 
his  work  on  "International  Law,"  holds  substantially  the 
same  opinion,  emphasizing  the  fact  that  the  idea  of  the  na- 
tion is  associated  with  origin  or  birth,  community  of  race, 
community  of  language,  etc.^  Community  of  race  and 
language  are  undoubtedly  the  most  usual  and  satisfactory 
tests  for  determining  the  existence  of  a  nation.^  Identity 
of  race  implies  kinship,  while  community  of  language  sup- 
plies the  medium  through  which  the  people  understand  one 

•  "Traite  de  Droit  int.  pub.,"  vol.  I,  p.  125.  See  also  his  "Principes  gencraux  de 
Droit  de  Politique  et  de  Legislation,"  p.  184  ff.  Compare  the  definition  of  Carnazza- 
Amari,  op.  ciL,  vol.  I,  p.  223:  "A  nation  is  a  multitude  of  conational  families 
spontaneously  united  under  a  free  government  and  having  fixed  their  abode  on  a 
determinate  territory  with  the  purpose  of  obtaining  external  respect  for  their 
personality."  A  state,  he  maintains,  is  an  association  resting  upon  force  01'  arbi- 
trary action,  while  a  nation  is  a  state  constituted  according  to  nature,  not  in  an 
artificial  or  violent  manner;  that  is,  an  association  of  families  having  homogeneous 
interests  and  aspirations  and  constituting  a  national  family. 

^  Ibid.,  p.  126. 

3  "Droit  internat.  theoriqueet  pratique,"  vol.  I,  p.  169.  A  distinction,  saysBlunt- 
schli,  is  sometimes  made  between  nation  and  people.  A  nation,  he  says,  is  a  "  union  of 
masses  of  men  of  different  occupations  and  social  strata  in  a  hereditary  society  of 
common  spirit,  feeling,  and  race,  bound  together  especially  by  language  and  customs, 
in  a  common  civilization,  which  gives  them  a  sense  of  unity  and  distinction  from  all 
foreigners,  quite  apart  from  the  bond  of  the  state."  A  "  people"  (Volk)  he  conceives 
to  be  "a  society  of  all  the  members  of  a  state  united  and  organized  in  the  state" 
("Allg^meine  Stuatslehre,"  bk.  II,  ch.  2).  In  short,  the  distinction  consists 
in  the  existence  of  pohtical  unity  in  the  latter  and  its  absence  in  the  former.  Gum- 
plowicz  ("  Allgemeines  Staatsrecht,"  ed.  1907,  pp.  107-110)  concurs  with  Bluntschli 
in  attributing  political  unity  to  the  "people,"  that  is,  in  holding  that  there  can  be  no 
"people"  without  a  state. 

*  Lecky,  however,  does  not  consider  race  a  good  test  of  the  existence  of  a  nation, 
especially  when  color  is  the  test  of  the  race,  since  color  is  an  "obscure  and  deceptive 
guide."  Often  race  elements,  he  points  out,  are  so  inextricably  mixed  that  it  is  im- 
possible to  separate  them.  Language  and  religion  he  considers  a  "deeper  power" 
in  determining  national  unities,  yet  he  admits  that  there  are  many  examples  of  dif- 
ferent creeds  and  languages  successfully  blended  into  one  nationality.  "Democ- 
racy and  Liberty,"  vol.  I,  p.  5.  For  good  discussions  of  this  subject  see  Car- 
nazza-Amari,  "Droit  int.  pub.,"  vol.  I,  pt.  I,  ch.  2;  Fiore,  "Droit  int.  pub.," 
vol.  I,  pt.  I,  ch.  I ;  Mancini,  "  De  la  Nationalite  comme  fondement  du  Droit  des 
Gens,"  and  Nys,  "Droit  international,"  voL  I,  sec.  2,  ch.  2. 


STATE   AND   NATION  47 

another  and  become  friends  rather  than  strangers.  Com- 
munity of  language  is  also  a  powerful  instrument  of  in- 
tellectual and  social  intercourse  and  opens  the  way  for  the 
development  of  a  common  political  consciousness.  Gum- 
plowicz,  a  noted  European  publicist,  however,  considers  the 
test  of  a  nation  to  be  simply  "community  of  civilization" 
(Kulturgemeinschaft)  which  expresses  itself  in  a  common 
language.  Identity  of  speech  and  similarity  of  civiliza- 
tion, he  declares,  are  the  outgrowth  of  a  common  historic 
past  rather  than  the  result  of  a  common  ethnic  origin. 
The  ethnic  origins  of  many  modern  nations,  as  he  shows,  are 
diverse  and  unknown  and  hence  cannot  be  an  infallible 
test.  Thus  the  German,  Italian,  Spanish,  and  French 
"nationahties"  were  developed,  not  from  a  common  stem, 
but  from  heterogeneous  race  elements.  Yet  each  ulti- 
mately developed  a  common  language  and  a  common 
civilization,  and  these,  rather  than  identity  of  race  origin, 
are  really  the  distinguishing  marks  of  the  nation  in  each 
casc.^  Community  of  religion  was  once  considered  an 
essential  mark  of  the  existence  of  a  nation,  but  vAth  the  rise 
of  religious  freedom  the  influence  of  religion  as  a  bond  of 
national  unity  has  largely  disappeared.^ 

As  has  been  stated  above,  the  state  and  the  nation  are  Non- 
rarely    identical;    in    earlier    times    they    were    less    fre-  ll^^state 
quently  so  than  now,     A  single  state  may  in  fact  embrace  and 
within  its  limits  several  nations  or  nationalities.^     Thus 

'  "Allgemeines  Staatsrecht,"  p.  11 1  ff. 

^  Pradier-Fodere,  however,  as  we  have  seen  in  his  definition  above,  considers 
community  of  religion  as  one  of  the  constituent  elements  of  the  nation.  So  does 
Carnazza-Amari,  op.  ciL,  vol.  I,  p.  236. 

^  The  distinction  between  a  "nation"  and  a  "nationality"  is  not  always  easy  to 
make.  In  general,  we  may  say  that  a  nation  is  a  population  of  the  same  race  and 
language,  inhabiting  the  same  territory  and  constituting  the  larger  part  of  its  popula- 
tion ;  while  a  nationality  is  usually  one  of  several  distinct  ethnic  groups  scattered  over 
tne  state  and  constitutirig  but  a  comparatively  small  part  of  its  whole  population  (cf. 
Burgess,  op.  cit.,  vol.  I,  p.  5 ;  and  Gumplowicz,  "  Allgemeines  Staatsrecht,"  p.  124). 
Thus  the  English  population  in  the  United  Kingdom  constitutes  a  nation,  while  the 
Celtic  element  constitutes  only  a  nationality.     In  the  same  way  we  may  say  that  the 


48  THE    NATURE    OF   THE   STATE 

the  English  state  embraces  within  its  geographical  boun- 
daries at  least  one  nation  and  various  nationalities,  notably 
the  Celts  of  Ireland,  the  French  of  lower  Canada,  the  Dutch 
of  South  Africa,  and  others.  The  kingdom  of  Hungary 
includes  Slav,  Roumanian,  Teutonic,  and  other  nationalities. 
The  Belgian  state  embraces  in  addition  to  its  dominant 
French  population  a  considerable  Flemish  element.  Russia 
contains  within  its  vast  boundaries  many  diverse  race 
elements:  Slavs,  Lithuanians,  Finns,  Tartars,  Roumans, 
and  others.  Switzerland  embraces  parts  of  three  nations : 
French,  Germans,  and  Italians.  The  United  States  con- 
tains in  addition  to  its  Teutonic  and  African  populations 
other  important  race  elements  such  as  the  Germans,  Scan- 
dinavians, Italians,  and  Irish,  though  none  of  these  are  suffi- 
ciently numerous,  compact,  or  isolated,  geographically, 
to  constitute  distinct  ethnic  unities. 

On  the  other  hand,  the  limits  of  the  state  may  be  nar- 
rower than  those  of  the  nation,  and  hence  several  states 
or  parts  of  states  may  be  embraced  within  the  same  ethnic 
unity.  Thus  the  French  republic  and  the  greater  part  of 
the  kingdom  of  Belgium  are  embraced  within  the  limits 
of  the  same  nation.  The  greater  part  of  the  German 
Empire  and  parts  of  the  Austrian  and  Swiss  states  are 
embraced  within  the  Germanic  nation,  while  the  popula- 
tion of  Central  and  South  America  is  largely  the  same  in 
ethnic  origin  and  language,  yet  is  spread  over  many  states. 

It  is  evident,  therefore,  that  not  every  state  is  a  nation 
nor  every  nation  a  state;  one  is  sometimes  broader,  some- 
negro  population  in  the  United  States,  the  French  population  in  Canada,  the  Polish 
element  in  the  German  Empire,  constitute  nationalities  rather  than  nations.  Laveleye, 
in  his  "  Gouvernement  dans  la  Democratie"  (bk.  II,  ch.  3),  distinguishes  between  a 
nation  and  a  nationality  as  follows:  "A  nation  is  a  group  of  men  united  under  the 
same  sovereignty,"  while  "a  nationality  is  a  group  of  men  united  by  identity  of 
origin,  race,  language,  or  by  community  of  traditions,  history,  and  interests."  A 
nation,  he  says,  may  embrace  several  nationalities,  Austria,  for  example.  But  evi- 
dently he  identifies  nation  and  state  by  attributing  political  unity  and  sovereignty  to 
the  nation,  while  his  conception  of  a  nationality  is  identical  with  what  we  have  defined 
as  the  nation.     Cf.  also  Pradier-Fodere,  "  Traite,"  etc.,  vol.  I,  pp.  125-130. 


PRINCIPLE    OF   NATIONALITY 


49 


times  narrower,  in  area,  than  the  other,  and  hence  there  is 
frequent  overlapping.  The  tendency  of  the  last  century 
has  been  in  the  direction  of  identification,  that  is,  toward  the 
organization  of  states  with  boundary  Hues  coincident  in  a 
general  way  with  those  of  nations.  This  tendency  rests  on 
the  great  principle  of  nationality,  which  seeks  to  bring  those 
populations  having  the  same  ethnic  origin  and  language 
under  the  same  political  organization  so  as  to  constitute 
a  single  body  politic.^  The  principle  does  not,  however, 
mean  that  every  nation,  however  small,  has  an  inherent 
right  and  a  duty  to  organize  Itself  into  a  state,  for  obviously 
not  every  nation  possesses  the  requisite  population  or  the 
political  capacity  for  creating  and  maintaining  a  state 
organization.  It  is  generally  agreed,  for  example,  that  the 
Celtic  peoples  of  western  Europe,  as  well  as  various  nation- 
alities in  southeastern  Europe,  together  with  certain  peoples 
of  Asia,  have  not  given  evidence  of  sufficient  political  ca- 
pacity to  organize  and  maintain  states.  Politically  weak 
and  incapable  peoples  everywhere  must  submit  to  the 
guidance  and  tutelage  of  the  stronger  and  more  highly 
endowed  nations,  politically  speaking;  and  some  writers 
go  to  the  length  of  maintaining  that  it  is  the  duty  of  the 
latter,  in  the  interest  of  the  civilization  of  the  world,  to 
force  state  organization  upon  backward  races  by  such 
means  as  in  their  judgment  may  be  necessary  to  accom- 
plish the  result,  even  to  the  extent  of  clearing  their  ter- 
ritories of  their  presence  and  of  making  it  the  abode  of 
civilized  man.^ 

Considerations  of  national  unity  and   political  stability  The  Prin- 
require  that,  so  far  as  possible,  the  principle  of  nationality  ^*P!f  °* 
should  be  respected  in  the  organization  or  reorganization  of  aiity  in 
states;  and  the  experience  of  the  last  century  teaches  that  izatio?of" 
wherever  it  has  been  disregarded,  as  it  was,  for  example,   s****^ 
by  the  Congress  of  Vienna  in  1815,  when  territories  and 

*  Compare  Laveleye,  " Gouvernement  dans  la  Democratic,"  bk.  II,  ch.  3. 
^  Compare  Burgess,  op.  cit.,  vol.  I,  p.  46;  Bluntschli,  op.  cit.,  bk.  II,  ch.  4. 
POL.  SCI,  —  4 


50  THE    NATURE   OF    THE    STATE 

peoples  were  divided  among  the  victorious  powers  without 
regard  to  race,  nationality,  religion,  or  antecedents,  the  re- 
sults have  been  disastrous  and  readjustments  have  become 
inevitable  in  the  course  of  time.  Wherever  geographic  and 
ethnic  lines  coincide,  there  is  a  strong  impulse  to  political 
organization  within  these  limits  —  that  is,  the  nation  tends 
to  organize  itself  into  a  state.  During  the  Middle  Ages  the 
principle  of  nationality  played  little  part  in  the  organization 
of  states,  and  indeed  it  did  not  come  to  be  fully  accepted 
until  comparatively  recent  times.  During  the  nineteenth 
century  it  exerted  a  powerful  influence  upon  the  political 
readjustments  which  took  place  in  Europe.  It  contributed 
to  the  political  enfranchisement  of  Greece,  Roumania, 
Servia,  and  Bulgaria,  and  ultimately  to  the  independence 
of  some  of  them;  it  brought  about  the  unification  of  the 
German  and  Italian  states;  it  led  to  the  disruption  of  the 
unnatural  union  between  Belgium  and  Holland,  and  to  the 
rounding  out  along  national  lines  of  the  boundaries  of  vari- 
ous other  European  states.^  It  is  to-day  at  the  basis  of 
some  of  the  largest  questions  of  European  politics.  It 
overtops  all  other  questions  in  the  politics  of  Austria-Hun- 
gary where  the  population  is  a  conglomeration  of  different 
races,  speaking  different  languages,  having  little  common 
sympathy,  and  each  animated  by  national  aspirations  of 
its  own.  In  Austria,  Bohemia  demands  national  autonomy, 
the  German  element  is  struggling  for  supremacy  of  control, 
the  Czechs  are  fighting  for  recognition  of  their  language 
by  the  state,  etc.  In  Hungary,  the  struggle  between  the 
various  nationalities  is  intense,  almost  to  the  point  of  dis- 
ruption. The  Magyars  demand  official  use  of  their  lan- 
guage in  the  army  and  in  the  civil  service;  the  Slovaks, 
Poles,  Ruthenlans,  Serbs,  Slowenians,  Croatians,  and  other 
nationalities  represent  so  many  different  ideals,  tempera- 

' Compare  La veleye,  "  Gouvernement  dans  la  Democratie,"  bk.  II,  ch.  3.  Laveleye 
quotes  Napoleon  as  once  saying,  "The  government  which  first  raises  the  flag  of  na- 
tionality and  becomes  its  defender  will  dominate  Europe."     Ibid.,  p.  53. 


PRINCIPLE    OF   NATIONALITY  51 

ments,  and  elements  of  dissension/  The  principle  of 
nationality  is  at  the  bottom  of  the  Pan-Germanistic  move- 
ment, which  seeks  to  unite  under  a  single  state  organization 
all  the  German-speaking  populations  of  western  Europe: 
the  German  Empire,  Alsace,  part  of  Lorraine,  most  of 
Switzerland,  part  of  Holland  and  Schleswig,  and  part  of 
Austria.  It  is  at  the  foundation  of  the  Pan-Slav  movement, 
which  would  unite  all  the  Slavs  of  eastern  Europe  under  a 
common  scepter:  Poles,  Slowenians,  Moravians,  Serbs, 
Czechs,  and  Croatians,  now  found  in  Prussia,  Russia,  Austria, 
Saxony,  and  Turkey.^  The  same  principle  would  bring  to- 
gether the  Scandinavian  races:  Norwegians,  Swedes,  and 
Danes;  establish  the  independence  of  Finland;  secure  the 
autonomy  of  the  Flemish  population  in  Belgium ;  give  home 
rule  to  Ireland;  and  lead  to  a  readjustment  of  the  bounda- 
ries between  France  and  Germany  and  between  Italy  and 
Austria. 

Nationality,  which  is  but  another  name  for  national  kin-  Duty  of 
ship,  has  been  a  powerful  force  in  bringing  into  relation  Jo^g^cure 
petty  states  and  holding  them  together  against  the  disin-  Ethnic 
tegrating  forces  of  sectionalism  and  particularism,  while  geneityin 
lack  of  it  has  been  a  potent  cause  of  disruption  in  many  jation^" 
states.     Ethnic    homogeneity    coupled    with    geographic 
unity  are  undoubtedly  among  the  most  powerful  factors 
in  maintaining  poHtical  solidarity,  and  it  should  be  the  am- 
bition of  every  state  to  organize  itself  so  as  to  secure  these 
elements  of  national   strength   and   stability.     Struggling 
nationalities,    according   to   some   writers,    should    be   en- 
couraged to  separate  themselves  from  unnatural  unions  and 
establish  independent  existences,  rather  than  be  suppressed 
as  they  were  in  Europe  during  the  early  nineteenth  century.^ 
Whenever  there  are  within  the  limits  of  a  state  several  more 

^  Compare  Gumplowicz,  "  Allgemeines  Staatsrecht,"  pp.  136-156,  on  the  nation- 
ality question  in  Austria-Hungary. 

^  See  Pradier-Fodere,  "Traite  de  Droit  int.  pub.,"  vol.  I,  pp.  130-131. 
^  Compare  Lecky,  "Democracy  and  Liberty,"  vol.  I,  p.  392. 


52  THE  NATURE  OF  THE  STATE 

or  less  populous  nationalities,  with  widely  different  customs 
and  degrees  of  civilization  and  especially  when  they  consti- 
tute distinct  geographic  unities,  the  danger  of  dissension  and 
of  disintegration  makes  it  worth  while  to  consider  whether 
the  welfare  of  the  peoples  directly  concerned  and  the  civil- 
ization of  the  world  would  not  be  promoted  by  a  voluntary 
division  of  the  state  and  its  reorganization  along  national 
lines.  This  has  happened  as  a  result  of  revolt  and  suc- 
cessful war  many  times  in  the  history  of  the  past,  and  is 
likely  to  happen  again  in  the  future/  In  any  case  the  state 
should  strive  by  all  proper  means  to  render  its  population 
ethnically  homogeneous  and  thereby  remove  one  of  the 
most  potent  sources  of  national  discord.  Some  writers 
maintain  that  where  the  outlying  provinces  of  a  state  ex- 
posed to  the  attacks  of  a  dangerous  neighbor  are  inhabited 
by  an  alien  and  disaffected  nationality,  the  state  is  justified 
in  adopting  extreme  measures  to  bring  about  their  assimi- 
lation with  the  rest  of  the  population,  and  may  in  case  of 
necessity  remove  them  bodily  from  the  exposed  dis- 
trict and  deport  them  to  other  parts  or  distribute  them 
throughout  the  state  in  such  a  way  as  to  destroy  their  na- 
tional aspirations.  This  has  been  justified  on  the  ground 
that  with  states,  as  with  individuals,  self-preservation  is 
the  first  law  of  nature.  It  was  upon  considerations  of  this 
character  that  the  Emperor  Napoleon  forced  the  use  of  the 
French  language  upon  the  German  inhabitants  of  Alsace  and 
that  Prussia  is  to-day  demanding  the  use  of  the  German 
language  in  the  schools  of  the  province  of  Posen.  Not 
widely  different  in  principle  is  the  present  policy  of  the 
Emperor  Francis  Joseph  in  insisting  upon  the  use  of  a 
common  language  in  the  army  of  Austria-Hungary,  and  of 
the  United  States  in  attempting  to  protect  by  restrictive 

*  For  example,  in  Austria-Hungary.  But  a  contrary  view  is  expressed  by  Seton- 
Watson  (Scotus  Viator),  who  maintains,  in  his  "Future  of  Austria-Hungary"  (1907), 
that  the  predicted  break-up  is  not  only  improbable  but  impossible,  and  he  advances 
a  number  of  reasons  in  support  of  his  proposition. 


PRINCIPLE    OF    NATIONALITY  53 

legislation  its  population  against  the  deleterious  effects 
of  an  undesirable  foreign  immigration.  Some  writers  go 
to  the  length  of  holding  that  the  wishes  of  the  local  inhabit- 
ants are  entitled  to  no  respect  whatever  when  considera- 
tions of  national  unity  require  their  annexation  to  another 
country.  Thus  the  German  argument  for  the  annexation 
of  Alsace  was  based,  not  on  the  theory  that  the  Alsatian 
population  desired  annexation  to  Germany,  for  as  a  matter 
of  fact  they  preferred  union  with  France,  but  on  the  ground 
that  they  were  German  in  origin  and  spoke  the  German 
language.  The  French,  on  the  contrary,  have  defended 
their  designs  on  the  Rhine  on  the  ground  that  the  Rhine 
is  the  natural  geographical  frontier  of  France,  and  that  the 
annexation  of  the  territory  in  question  would  mean  a 
rounding  out  and  a  completion  of  her  national  unity. 
Similarly  Italian  writers  have  demanded  the  annexation  or 
absorption  of  the  Italian-speaking  communities  in  Austria 
and  Switzerland  because  they  are  Italian  in  race  and 
language.^ 

What  has  been  said  above  in  regard  to  the  right  of  the  Respect 
state  within  reasonable  limits  to  take  extreme  measures  to  R^ghJof 
preserve  itself  against  the  dangers  of  ethnic  heterogeneity  Nation- 

fllitics 

in  its  population  must  not  be  understood  as  an  argument 
in  favor  of  the  reckless  disregard  of  the  rights  of  national- 
ities.^ Considerations  both  of  humanity  and  of  public 
policy  require  that  their  peculiar  customs  and  institutions 
should  within  the  limits  of  national  security  be  respected. 
Except  in  extraordinary  circumstances,  they  should  be  al- 
lowed to  retain  their  own  language,  their  local  law,  and  such 
of  their  institutions  as  are  peculiar  to  them  and  suited  to 
their  local  conditions.  But  it  is  no  injustice  to  small  nation- 
alities within  the  state  not  to  be  allowed  the  use  of  their 
language  in  the  national  parliament,  or  in  the  army,  though 

*  Compare  Lecky,  "Democracy  and  Liberty,"  vol.  I,  p.  394. 

*  On  the  rights  of  nationalities  see  Bluntschli,   "Allgemeine  Staatslehre,"  bk. 
II,  ch.  3. 


54 


THE   NATURE    OF   THE   STATE 


Consoli- 
dation of 
States  in 
the  Inter- 
est of 
Nation- 
ality 


considerations  of  convenience,  regardless  of  any  question  of 
moral  right,  usually  make  it  advisable  to  permit  to  each  na- 
tionality the  use  of  its  own  language  in  the  local  governments. 
On  the  other  hand,  the  principle  of  nationality  in  its 
strictest  form,  in  cases  where  several  states  are  organized 
within  the  limits  of  a  single  nation,  especially  if  it  consti- 
tutes at  the  same  time  a  geographic  unity,  would  require  the 
union  of  the  several  states  under  a  common  sovereignty, 
either  through  voluntary  federation  or  through  the  absorp- 
tion of  the  smaller  states  by  the  larger.  It  was  through 
the  latter  process  that  the  German  Empire  and  the  king- 
dom of  Italy  were  welded  into  national  states.  In  each  case 
the  more  powerful  and  progressive  state  within  the  nation 
took  the  initiative  and  gathered  about  it  such  of  its  neigh- 
bors as  voluntarily  consented  to  become  members  of  the 
union,  and  by  compulsion  forced  the  rest  to  merge  their 
existences  into  the  larger  organization ;  and  thus  the  po- 
litical boundaries  of  the  new  states  were  brought  into 
approximate  harmony  with  their  geographic  and  ethnic 
lines.  There  is  no  difference  of  opinion  now  that  the  wel- 
fare of  the  peoples  directly  concerned,  the  peace  of  Europe, 
and  the  civilization  of  the  world  were  promoted  by  the 
organization  of  these  great  national  states  in  the  place  of 
the  petty  commonwealths  which  formerly  existed ;  and  none 
but  the  political  doctrinaire  troubles  himself  to-day  about 
the  means  by  which  this  great  work  was  accomplished. 
Professor  Burgess,  speaking  on  this  subject,  well  says: 
"And  who  does  not  see  that  the  further  rounding  out  of 
the  European  states  to  accord  still  more  nearly  with  the 
boundaries  which  nature  has  indicated  would  be  in  the 
interest  of  the  advancement  of  Europe's  political  civiliza- 
tion and  of  the  preservation  of  the  general  peace?  It 
would  expel  the  Turk  from  Europe;  it  would  put  an  end  to 
the  Russian  intrigue  in  the  valley  of  the  Danube;  it  would 
give  Greece  the  vigor  and  power  to  become  a  real  state; 
and  it  would  bring  the  petty  states  of  Switzerland,  Denmark, 


PRINCIPLE    OF   NATIONALITY  55 

Holland,  Luxembourg,  Belgium,  and  Portugal  to  contrib- 
ute, in  far  greater  degree,  to  the  political  civilization  of  the 
world,  and  receive,  in  far  greater  degree,  the  benefits  of 
that  civilization,  than  their  present  conditions  permit. 
Even  then  there  would  be  weak  places  enough  in  the  boun- 
daries of  each  national  state,  but  their  number  would  be 
greatly  decreased,  and  the  temptation  to  invasion  which 
they  offer  greatly  lessened."  ^ 

The  political  history  of  Europe  during  the  past  century  Tendency 
goes  far  toward  justifying  the  conclusion  that  the  states  Jhrorgan- 
of  the  future  are  to  be  national  states,  not  necessarily  states  ization  of 
whose   political,  geographical,  and  ethnic  boundaries  are  national 
identical,  but  those  in  which  there  is  a  fair  approximation  ^***®^ 
to  this  ideal.     Some  writers,  notably  Dahlmann  and  Von 
Mohl  in  Germany,   Mancini,   Maniani,  and   Pierantoni  in 
Italy,  and  Burgess  in  America,  come  pretty  near  to  the 
point  of  contending  for  the  principle  that  the  boundaries 
of  states  and  nations  should  coincide;    that  is,  that  there 
should  be  a  state  for  every  nation  and  a  nation  for  every 
state.     A  strong  criticism  of  this  position  has  been  made 
by  Gumplowicz,  who  asserts  that  there  is  no  historical  or 
sociological  justification  for  the  view  that  "mono-national" 
states  possess  elements  of  advantage  over  those  composed 
of  a  number  of  nationalities.     He  asserts,  on  the  contrary, 
that   there   is  more  popular  freedom   in    "poly-national" 
states    than    in    those    whose    populations    are    ethnically 
homogeneous,  and  he  cites  Switzerland,  "the  freest  state  in 
Europe,"  as  an  example.^     Even  Bluntschli,  who  is  an  ex- 
treme advocate  of  the  principle  of  nationality  in  the  organ- 
ization of  states,  admits  that  ethnic  heterogeneity  is  not  an 
unmixed  evil,  since  the  presence  of  foreign  elements  in  the 

'  "Political  Science  and  Constitutional  Law,"  vol.  I,  p.  41. 

^"Allgemeine  Staatsrecht,"  p.  115  S.  For  a  good  review  of  the  doctrines  of 
the  Italian  school  of  writers  on  the  question  of  nationality,  see  an  article  by  Franz 
Holtzendorff  in  the  "  Revue  de  Droit  international, "  vol.  II,  pp.  92-106.  See  also 
Lecky,  "Democracy  and  Liberty,"  vol.  I,  pp.  391-396. 


56 


THE   NAtURE   OF   THE   STATE 


Alleged 
Advan- 
tages of 
Ethnic 
Hetero- 
geneity 


State  may  be  a  means  of  "keeping  open  connection  with 
the  civiHzation  of  other  states"  and  may  "serve  as  an 
alloy  to  give  strength  and  currency  to  the  nobler  metal."  * 
De  Parieu  quotes  the  Emperor  Francis  II  of  Austria  as 
once  saying  to  the  French  ambassador:  "My  people  are 
strangers  to  one  another  and  yet  it  is  for  the  better.  They 
never  have  the  same  ills  at  the  same  time.  In  France, 
when  there  is  an  epidemic  of  fever,  you  all  have  it  the 
same  day.  I  have  Hungarians  in  Italy  and  Italians  in 
Hungary.  Each  suspects  his  neighbor;  they  never  under- 
stand one  another  and  in  fact  detest  one  another.  Their 
antipathies,  however,  conduce  to  order  and  their  mutual 
hate  to  the  general  peace."  ^ 


rheories 
concern- 
ing the 
Nature  of 
Society 


III.  THE  ORGANIC  THEORY  OF  THE  STATE 

One  of  the  qualities  usually  attributed  to  the  state  is  that 
of  organic  unity.  A  mere  mass  of  human  beings  uncon- 
nected by  some  sort  of  unifying  bond  does  not  constitute 
a  state  or  even  a  society.^  Concerning  the  nature  and 
degree  of  this  unifying  element  a  number  of  theories  have 
been  advanced  by  sociological  and  political  writers.  One 
of  these  is  the  so-called  monistic  theory,  which  conceives 
organized  society  to  be  an  association  in  which  the  individ- 
uals composing  it  have  no  really  independent  existence  of 
their  own  but  are  swallowed  up,  as  it  were,  like  atoms  in 
the  whole  mass,  owing  all  that  they  are  and  all  that  they 
have  to  the  society  of  which  they  are  a  part.  Then  there 
is  what  has  been  called  the  monadnistic  theory,  which  goes 
to  the  other  extreme  and  considers  society  as  a  mere  aggre- 
gation of  individuals  or  groups,  in  which  there  is  no  real 
unity,  each  individual  being  largely  independent  of  the  rest, 
owing  nothing  to  society,  and,  except  for  a  sort  of  accidental 
juxtaposition,  standing  in  isolation  from  his  neighbors.    In 

^  "Allgemeine  Staatslehre,"  bk.  II,  ch.  4. 

-  "Principes  de  la  Science  politique,"  p.  304. 

^  Compare  Worms,  "Organisme  et  Societe,"  p.  7. 


THE   ORGANIC   THEORY   OF   THE   STATE  57 

the  third  place,  there  is  the  diialistic  conception,  which  repre- 
sents a  compromise  view.  It  considers  the  relation  of  the 
individual  to  society  to  be  one  of  partial  dependence  only. 
His  existence  is  neither  merged  in  that  of  the  whole  as 
though  he  existed  solely  for  society,  nor  is  he  entirely  iso- 
lated from,  and  independent  of,  his  social  surroundings.* 
Finally,  there  is  the  organic  view,  which  considers  society 
as  analogous  in  structure  to  a  biological  organism,  the  rela- 
tion of  the  individual  to  the  whole  mass  being  similar  to 
that  which  exists  between  the  cell  and  the  organism  of  a 
living  being. 

The  organic  theory,  says  Jellinek,  is  one  of  the  oldest  and  The 
most  popular  theories  concerning  the  nature  of  the  state.'  Thiory! 
Plato  compared  the  republic  to  a  great  man  and  insisted  that 
the  best-ordered  commonwealth  was  one  whose  structural 
organization  resembled  most  nearly  in  principle  that  of  the 
individual.^  As  the  whole  body  feels  the  pain  and  sym- 
pathizes with  an  injured  member,  so,  he  declared,  the  whole 
society  is  affected  by  injury  to  each  individual  of  which  it 
is  composed.*  Cicero  likewise  drew  an  analogy  between  the 
state  and  the  individual,  likening  the  head  of  the  state  to 
the  spirit  which  rules  the  human  body.  The  state  was 
personified  by  medieval  writers  like  John  of  Salisbury  and 
Marsiglio  of  Padua;  Althusius  was  fascinated  with  the  bio- 
logical analogy ;  and  many  of  the  writers  of  the  eighteenth 
century  attached  an  importance  to  it  out  of  all  proportion 
to  its  value.  The  French  Revolution,  with  its  accom- 
panying doctrine  that  the  state  was  merely  an  artificial 

'  For  the  above  distinctions  see  Mackenzie,  "Introduction  to  Social  Philosophy," 
first  ed.,  pp.  131-133;  see  also  Montague,  "Limits  of  Individual  Liberty,"  chs.  3 
and  4. 

'  "System  der  subjektiven  offentlichen  Rechte,"  p.  35. 

'"De  Republica,"  p.  462. 

*  Ibid.,  Ill,  25.  Cf.  also  Aristotle,  "Politics,"  Jowett's  ed.,  p.  113.  The  com- 
parison of  the  state  with  the  human  organism  has  been  a  favorite  subject  of  poets 
and  prose  writers.  See  Shakespeare,  "Julius  Caesar,"  II,  i;  St.  Paul,  Romans 
xxii,  51;  also  i  Cor.  xii,  12. 


58  THE   NATURE   OF   THE   STATE 

creation,  tended  to  check  the  spread  of  the  organic  theory ; 
but  toward  the  middle  of  the  nineteenth  century  a  reaction 
against  the  French  philosophy  set  in,  and  the  conception 
of  the  state  as  an  organism  came  to  have  numerous  advo- 
cates/ Indeed,  the  fascination  for  the  organic  theory, 
with  its  analogies  and  paralleHsms,  became  so  widespread 
that  political  science  seemed  in  danger  of  being  appro- 
priated by  natural  science.^  One  of  the  most  extreme  advo- 
cates of  the  organic  theory  was  the  noted  German  scholar 
Bluntschli,  in  his  "Theory  of  the  State"  ("AUgemeine 
Staatslehre")  and  in  his  "Psychological  Studies  con- 
cerning State  and  Church"  ("  Psychologische  Studien  iiber 
Staat  und  Kirche,"  1884).  The  state,  he  declares,  is  the  very 
"image  of  the  human  organism."  ^  Each  has  its  member 
parts,  its  organs,  its  functions,  its  life  processes,  and  be- 
tween those  of  the  state  and  human  organisms  there  exists 
a  deep  and  striking  resemblance.  He  pushes  the  bio- 
logical analogy  so  far  indeed  as  to  impute  sexual  qualities 
to  the  state,  it  being  personified  as  masculine  in  character 
as  contradistinguished  from  the  church,  to  which  he 
attributes  the  attribute  of  femininity.^  His  comparison 
of  the  structure  and  life  processes  of  the  state  to  those  of 
the  human  body  is  at  times  almost  amusing.^  The  state, 
to   him,    is  "no   mere   artificial    lifeless   machine,"    but   a 

*  Compare  on  this  point  Merriam,  "Theory  of  Sovereignty  since  Rousseau," 
p.  87  et  seq.     See  also  Jellinek,  op.  cit.,  p.  142  et  seq. 

^  See  Franz,  "Vorschule  der  Physiologie  des  Staates";  Leo,  "Studien  zu  einer 
Naturlehre  des  Staates  "  ;  Krieken,  "Uber  die  sogenannte  organische  Staatstheorie  " 
(1873) ;  Bruno  Schmidt,  "  Der  Staat  als  Organismus  "  in  his  "  Der  Staat,"  sec.  2  ; 
and  Richard  Schmidt,  "AUgemeine  Staatslehre,"  vol.  I,  sec.  18.  The  word 
"organism,"  says  Schulze,  first  appeared  in  the  German  literature  of  political 
science  in  Gerber's  "Offentliche  Rechte,"  published  in  1852,  in  a  criticism  of  the 
theory  which  had  formerly  been  advocated  under  other  names.  For  a  review  of  the 
development  of  the  organic  theory  in  Germany,  see  Schulze,  "  Deutsches  Staatsrecht," 
vol.  I,  pp.  20-23. 

*  "Psychologische  Studien  iiber  Staat  und  Kirche,"  p.  22. 

*  Ibid.,  p.  39;  see  also  his  "AUgemeine  Staatslehre,"  bk.  I,  ch.  i. 

*  Compare  the  preface  to  the  English  translation  of  his  "AUgemeine  Staatslehre," 
p.  V. 


THE    ORGANIC   THEORY   OF   THE   STATE  59 

"living  spiritual  organic  being."  As  an  oil  painting,  he 
says,  is  something  more  than  a  mere  aggregation  of  drops 
of  oil,  as  a  statue  is  something  more  than  a  combination  of 
marble  particles,  as  a  man  is  something  more  than  a  mere 
quantity  of  cells  and  blood  corpuscles,  so  the  nation  is 
something  more  than  a  mere  aggregation  of  citizens  and  the 
state  something  more  than  a  mere  collection  of  external 
regulations/ 

As  the  animal  organism  is  made  up  of  living  members  or  The  Bio- 
germ  cells,  interdependent  one  upon  the  other  and,  upon  Analogy, 
the  whole,  each  performing  its  peculiar  functions  in  the  life 
-economy  of  the  organism,  so  the  state  organism  is  composed 
of  individuals,  not  isolated  and  disconnected  like  the  atoms 
of  an  inorganic  body,  but  closely  related  and  dependent  upon 
one  another  and  upon  the  whole  society,  somewhat  as  a  limb 
of  the  human  body  or  the  branch  of  a  tree  is  dependent  upon 
the  main  trunk.  In  origin,  structure,  and  function,  say  the 
advocates  of  the  organic  theory,  there  is  a  striking  resem- 
blance between  the  social  body  and  the  animal  organism. 
Each  comes  into  existence  through  natural  rather  than  arti- 
ficial processes,  each  possesses  organs  whose  functions  are  sim- 
ilar in  many  respects,  and  each  changes  and  grows  according 
to  laws  instead  of  by  mere  chance.^  Rousseau,  who  saw  a 
close  resemblance  between  the  body  politic  and  the  human 
body,  compared  the  sovereign  power  of  the  state  to  the 
head  of  an  individual ;  the  laws  and  customs  to  the  brain ; 
the  judges  and  the  magistrates  to  the  organs  of  will  and 
sense;  commerce,  agriculture,  and  industry  generally  to 
the  mouth  and  stomach  which  prepare  and  digest  the  food ; 
and  the  public  finances  to  the  blood,  which  a  wise  economy, 
through  the  medium  of  the  heart,  distributes  throughout 
the  entire  organism.^ 

^  "Allgemeine  Staatslehre,"  p.  192. 

'  For  a  good  statement  of  the  analogy  by  a  French  writer,  see  Collier,  "La 
Souverainete  nationale,"  p.  21. 

'  Quoted  by  Leroy-Beaulieu,  "L'Etat  moderne  et  ses  Fonctions,"  p.  96.  I  am 
unable  to  find  the  analogy  in  this  form  in  Rousseau's  "LeContrat  social,"  although 


6o  THE   NATURE    OF   THE   STATE 

Spencer's  Herbert  spencer,  in  his  "Principles  of  Sociology,"  worked 
Compari-*  ^^^  ^  most  elaborate  analogy  between  organized  society  and 
son  the  biological  organism.     Both  the  animal  and  social  bodies, 

he  affirms,  begin  as  germs,  undergo  a  process  of  continuous 
growth,  the  parts,  as  they  develop,  becoming  more  and  more 
unlike,  and  exhibiting  greater  complexity  of  structure.  As 
the  lowest  type  of  animal  is  all  stomach,  respiratory  sur- 
face, or  limb,  so  primitive  society  is  all  warrior,  all  hunter, 
all  hut  builder,  or  all  tool  maker. ^  As  society  grows  in 
complexity,  division  of  labor  follows,  i.e.  new  organs  with 
different  functions  appear,  corresponding  to  the  differen- 
tiation of  functions  in  the  animal,  in  which  "fundamental 
trait"  they  become  "entirely  alike."  In  each  case  there  is 
a  mutual  dependence  of  parts,  the  full  performance  of  the 
functions  of  each  member  being  essential  to  the  health  and 
preservation  of  the  rest.  If  the  iron  worker  in  the  social 
organism  stops  work,  or  the  miner,  or  the  food  producer, 
or  the  distributor  fails  to  discharge  his  natural  functions 
in  the  economy  of  society,  the  whole  suffers  injury  just  as 
the  animal  organism  suffers  from  the  failure  of  its  members 
to  perform  their  functions.  Thus  the  "parallelism  between 
social  and  animal  life"  is  maintained.  The  slow  but  con- 
stant replacement  of  cell  tissue  and  blood  corpuscle  in  the 
animal  organism,  by  which  it  is  destroyed  and  reproduced 
again,  we  are  told,  is  paralleled  by  the  processes  in  society, 
by  which  it  is  permanently  maintained,  notwithstanding  the 
deaths  of  the  component  members."  Spencer  attributes  to 
both  the  animal  organism  and  the  social  body  a  "sustaining 
system"  consisting  of  alimentation  in  the  former,  and 
production  in  the  latter;  a  "distributing  system"  consist- 
ing of  the  circulatory  apparatus  in  the  human  body,  and 
the  transportation  system  in  society;  and  a  "regulatory 
system,"  the  nervous  system  in  the  animal,  governments 

in  bk.  Ill,  ch.  ii,  he  compares  the  legislative  power  to  the  heart  and  the  executive  to 
the  brain,  "which  gives  motion  to  all  the  parts." 

'  Vol.  I,  pt.  II,  sec.  217.  *  Ibid.,  sec.  217,  also  chs.  3  and  4. 


THE    ORGANIC   THEORY    OF   THE    STATE  6i 

and  armies  in  the  state. ^  In  spite  of  all  these  elements  of 
resemblance  Spencer  admits,  however,  that  there  is  one 
"extreme  unlikeness"  in  the  structure  of  the  body  politic 
and  the  animal  organism.  The  latter,  he  says,  is  concrete 
in  structure,  that  is,  its  units  are  bound  together  in  close 
contact;  while  the  social  body  is  discrete,  its  units  being 
free  and  "more  or  less  widely  dispersed."  ^  He  readily  ad- 
mits that  the  difference  is  "fundamental,"  though,  he  says, 
"upon  close  examination  it  will  not  put  comparison  out  of 
the  question,"  for  it  can  be  shown  that  "the  social  aggre- 
gate, though  discrete,  is  still  a  living  whole."  ^  There  is 
still  another  difference  between  the  two  organism.s,  he  says, 
which  "greatly  affects  our  notion  of  the  ends  to  be  achieved 
by  social  organization,"  namely,  the  lack  of  a  "nerve 
sensorium"  in  the  social  body.  In  the  animal,  conscious- 
ness is  concentrated  in  a  small  part  of  the  aggregate;  in  the 
social  organism,  it  is  diffused  throughout  the  aggregate. 
The  conclusion  of  practical  politics  which  Spencer  draws 
from  the  failure  of  the  analogy  at  this  point  is  that  the 
welfare  of  the  aggregate  in  society,  considered  apart  from 
that  of  the  units,  is  not  an  end  to  be  sought;  that,  in  short, 
society  exists  for  the  benefit  of  its  members,  not  its  members 
for  the  benefit  of  society.^  Upon  the  dissimilarity  which  he 
finds  between  society  and  the  biological  organism,  or  rather 
upon  the  discrete  nature  of  the  social  organism,  he  builds 
up  his  individualistic  political  philosophy,  which  has 
seemed  to  some  to  be  wholly  inconsistent  with  his  organic 
theory  of  the  state. ^ 

^  Ibid.,  chs.  7,  8,  and  g.  In  the  "Westminster  Review,"  in  i860,  Spencer 
published  an  essay  in  which  he  drew  a  parallel  between  the  up-and-down  lines  of  a 
railway,  which  furnishes  the  circulation  of  commodities  in  the  social  organism, 
and  the  arteries  and  veins  of  an  animal,  money  being  the  blood  corpuscles  and  the 
telegraph  wires  the  nerves.  I  am  unable  to  find  any  allusion  to  this  parallel  in  his 
collected  works,  from  which  it  seems  to  have  been  wisely  omitted. 

^  Ibid.,  sec.  220.  '  Ibid.,  sec.  221.  *  Ibid.,  sec.  222. 

*  Compare  Ritchie,  "Principles  of  State  Interference,"  p.  17.  Spencer's  denial 
of  the  existence  of  a  "nerve  sensorium  "  in  society  was  probably  the  result  of  his  indi- 
vidualistic thinking.     After  his  long  argument  in  support  of  the  organic  theory  of 


62 


THE   NATURE    OF   THE   STATE 


Other 
Advocates 
of  the 
Organic 
Theory 


The  Austrian  publicist  Albert  Schaffle  is  another  writer 
who  has  greatly  overworked  the  biological  analogy.  In 
lOur  large  volumes  entitled  "The  Structure  and  Life  of 
the  Social  Body"  ("Bau  und  Leben  des  socialen  Korpers") 
ne  examines  at  great  length  the  anatomical,  physiological, 
biological,  and  psychological  resemblances  between  society 
and  the  animal  body  and  asserts  that  society  is  an  organism 
whose  protoplasm  or  unit  is  man,  the  state  or  government  in 
the  one  corresponding  to  the  brain  in  the  other.  His  work 
as  a  whole  exhibits  evidence  of  enormous  learning  and  wide 
research,  and  the  theory  of  the  organic  nature  of  society  is 
supported  with  ability  and  ingenuity.^  Of  a  similar 
character  and  magnitude  is  the  work  of  Paul  Lilienfeld,  a 
Russian  sociologist,  whose  "Thoughts  concerning  the 
Social  Science  of  the  Future"  ("Gedanken  liber  die  Social- 
wissenschaft  der  Zukunft"),  published  in  five  volumes  be- 
tween 1873  and  1 88 1,  constitutes  an  elaborate  exposition  of 
the  organic  theory,  including  the  laws  of  social  psychology 
and  social  physiology.  He  goes  even  beyond  Spencer  and 
Schaffle  in  the  emphasis  which  he  places  on  the  organic 
character  of  society,  and  in  his  advocacy  of  the  biological 
analogy.^  Among  others  who  have  explained  and  de- 
fended the  organic  theory  may  be  mentioned  the  French 
writers:  Auguste  Comte,^  Tarde,*  Letourneau,^  De  Greef,® 
Fouillee,^  and  Rene  Worms;*  the  Polish  writerGumplowicz;' 

society,  it  seemed  necessary  to  reconcile  his  biological  theory  with  his  doctrine  of 
Individualism  by  showing  that  after  all  there  is  a  difference  and  that  the  parts  are 
not  dependent  on  the  whole,  as  they  are  in  the  case  of  the  animal  organism. 

^  Compare  Leroy-Beaulieu,  "L'Etat  moderne  et  ses  Limites,"  ch.  4. 

'  For  a  statement  of  the  difference  between  their  conceptions  see  the  preface  of 
Rene  Worms  to  Lilienfeld's  "La  Pathologie  social,"  p.  vii.  In  the  latter  work 
Lilienfeld  continues  his  study  of  the  organic  nature  of  society,  considering  in  particu- 
lar such  topics  as  the  "maladies  of  the  social  organism,"  its  "nervous  system,"  the 
pathology  of  society,  "  social  therapeutics,"  etc. 

'  "Positive  Philosophy,"  vol.  II,  ch.  3. 

*  "Lois  de  I'lmitation,"  also  his  "Division  du  Travail." 

*"La  Sociologie."  '"Introduction  a  la  Sociologie." 

^  "La  Science  sociale  contemporaine."  ^  "Organisme  et  Societe." 

•  " Sociologische  Staatsidee, "  also  his  "Sociologie  und  Politik." 


THE    ORGANIC   THEORY    OF   THE    STATE  63 

and  the  Germans  Ahrens  ^  and  Waitz."  Of  these  the 
French  sociologist  Worms  is  to-day  probably  the  most 
eminent  advocate  of  the  organic  theory.  In  his  "Organ- 
ism and  Society"  he  expounds  and  defends  the  biological 
analogy,  maintaining  that  the  anatomy,  physiology,  and 
patholog}^  of  society  possess  striking  similarities  to  the 
structure,  function,  and  pathology  of  living  beings.^ 

If  the  organic  theory  meant  simply  that  the  state  is  Criticism 
something  more  than  an  aggregation  of  individuals  crowded  organic 
or  massed  together  without  any  unifying  bond,  in  other  Theory 
words,  that  it  is  a  society  in  which  the  members  individually 
are  in  a  peculiar  sense  dependent  upon  the  w^hole  and  the 
whole  in  turn  is  conditioned  upon  the  parts,  no  well- 
grounded  objection  to  it  could  be  sustained.  Even  the 
biological  analogy  up  to  a  certain  point,  though  subserving 
little  or  no  practical  purpose,  is  harmless  and  scientifically 
unobjectionable,  for  manifestly  there  are  certain  elements 
of  resemblance  between  the  structure  and  functions  of  the 
state  on  the  one  hand  and  those  of  living  beings  on  the  other. 
But  at  many  points  the  comparison  utterly  fails  and  the 
resemblance  becomes  pure  fancy.  Thus  the  resemblance 
between  the  cells  of  a  biological  organism  and  the  human 
beings  who  constitute  the  body  politic  will  be  seen  upon 
dose  examination  to  be  exceedingly  superficial.  The 
former  are  mechanical  pieces  of  matter,  with  no  independ- 
ent life  of  their  own,  each  being  fixed  in  its  place,  having 
no  power  of  thought  or  will,  and  existing  solely  to  support 
and  perpetuate  the  life  of  the  whole;  the  latter  are  intel- 
lectual and  moral  beings,  each  having  a  will  of  its  own, 
possessing  the  power  of  foresight,  movement,  and  self- 
control,  and  a  physical  life  independent  of  the  whole  of 
which  they  are  a  part.  Each  individual  has  to  a  large 
extent  the  shaping  of  his  own  life;  and  his  place  in  the 
organism  is  not  determined  for  him  nor  are  his  activities 
regulated  by  central  organs.    This  lack  of  consciousness  and 

*  "Die  organische  Staatslehre."      *  "Politik,"  vol.  I.       ^  See  especially  ch.  1. 


64 


THE    NATURE    OF    TFIE    STATE 


will  on  the  part  of  the  cells  of  the  animal  organism  and  Its 
presence  in  the  state  organism  is  one  of  the  instances  where 
the  analogy  fails.  With  the  animal  organism  the  depend- 
ence of  the  parts  on  the  whole  is  essential,  and  the  relation 
intrinsic;  if  they  are  severed  from  their  connection,  as  a 
branch  from  a  tree  or  a  liml)  from  an  animal,  they  perish 
and  cease  to  be  living  matter.  With  the  state,  on  the  con- 
trary, the  separation  of  a  member  docs  not  result  in  de- 
struction, physically  speaking;  the  individual  separated 
from  the  whole  is  still  an  individual.*  Moreover,  the  laws 
of  growth,  development,  decay,  and  death  which  govern 
the  life  of  the  human  organism  are  scarcely  analogous  in 
any  sense  to  those  which  reign  in  the  world  of  politics.  An 
organism  grows  and  develops  from  within  by  internal  adap- 
tation, not  by  the  addition  from  without  of  new  parts; 
while  the  state  changes  rather  than  grows,  and  does  this, 
for  the  most  part,  by  the  process  of  formal  alteration  as  a 
result  of  volitional  power  and  conscious  effort  of  the 
members.  Its  growth,  if  such  it  may  be  called,  is  largely 
the  result  of  the  conscious  action  of  its  individual  members 
and  is  to  a  great  extent  self-directed.  The  elements  of  voli- 
tion and  of  conscious  effort  do  not  enter  into  the  growth 
of  an  organism;  it  changes  in  obedience  to  the  operation 
of  blind  mechanical  forces  of  nature,  the  parts  having  no 
power  to  alter  the  direction  of  its  growth  or  to  add  to 
its  stature.^  Indeed,  as  Jellinek  remarks,  growth,  decline, 
and  death  are  not  necessary  processes  of  state  life  though 
they  are  inseparable  from  the  life  of  the  organism.'  The 
state  does  not  originate  or  renew  itself  as  a  plant  or  an 
animal  does.  In  fact,  to  quote  Jellinek  again,  many 
modern  states  like  the  German  Empire,  Italy,  and  some 
of   the   Balkan   commonwealths   owe   their   existences   to 


*  Compare  Mackenzie,  "Introduction  to  Social  Philosophy,"  p.  138. 

*  Compare  Willoughby,  "Nature  of  the  State,"  p.  37,  and  Ward,  "Psychic  Fac- 
tors of  Civilization,"  p.  299. 

'  "System  der  subjektiven  offentlichen  Rechte,"  p.  40. 


THE    ORGANIC   THEORY    OF   THE    STATE  65 

the  sword  rather  than  to  any  cause  that  may  be  compared 
to  the  procreative  or  generative  processes  through  which 
plants  and  animals  come  into  existence.' 

Our  conckision  must  be  that  the  biological  analogy,  in  conciu- 
the  form  in  which  it  is  usually  stated,  is  not  only  fanciful  ^'°°^ 
and  absurd,  but  even  mischievous,  and  would  not  merit 
notice  were  it  not  relied  upon  by  some  respectable  writers 
as  the  justification  of  an  important  theory  concerning  the 
relation  of  the  state  to  the  individual  members  composing 
it  —  a  subject  which  will  be  discussed  in  a  later  chapter 
of  this  book.  Some  of  these  biological  comparisons  are 
ingenious  and  well  stated ;  to  many  writers  they  have  proved 
fascinating  and  seductive;  to  others  they  have  constituted 
the  basis  of  an  argument  for  a  theory  of  the  state  which 
would  sacrifice  the  individual  to  society.  The  organic 
theory,  in  the  sense  in  which  it  is  understood  by  many 
writers,  rests  on  mere  analogy,  and  we  would  do  well  to 
heed  Lord  Acton's  warning  about  analogies  and  parallel- 
isms lest  we  come  to  grief.  For  this  reason  Jellinek  sug- 
gests that  we  had  better  reject  the  theory  in  toto  lest  the 
danger  from  the  large  amount  of  falsity  in  the  analogy 
should  outweigh  the  good  in  the  little  truth  which  it  con- 
tains.^ It  is  difficult  to  see  what  is  to  be  gained  by  the 
attempt  to  identify  or  compare  the  state  with  an  organism. 
At  this  stage  of  the  world's  political  development  neither 
the  identification  nor  the  resemblance  is  necessary  to  estab- 
lish the  supremacy  of  the  state  over  the  individuals  who 
compose  it.^ 

*  "Recht  des  mod.  Staates,"  p.  149.  ^  Ibid.,  p.  151. 

^  For  criticism  of  the  organic  theory  see  Jellinek,  "Recht  des  mod.  Staates," 
p.  142  ff. ;  Leroy-Beauiieu,  op.  cit.,  ch.  4;  Mackenzie,  "Introduction  to  Social 
Philosophy,"  ch.  3 ;  Schulze,  "  Deutschcs  Staatsrecht,"  I,  22-23 ;  Leacock,  "  Elements 
of  Political  Science,"  pp.  80-82;  Willoughby,  "Nature of  the  State,"  ch.  3.  Worms, 
in  his  "Organisme  et  Soci^t^, "  ch.  2,  examines  and  answers  the  various  objections 
to  the  organic  theory. 


POL.  SCI.  —  5 


CHAPTER   III 


ESSENTIAL   ELEMENTS   OF   THE   STATE 


Citizens 

and 

Subjects 


Suggested  Readings:  Bluntschli,  '  Ailgemeine  Staatslehre,"  bk.  I, 
ch.  i;  bk.  Ill,  chs.  1-3;  Bornhak,  "Ailgemeine  Staatslehre,"  pp.  69- 
81;  Carnazza-Amari,  "  Traite  de  Dn  it  international  public,"  vol.  I, 
p.  193  ff. ;  Despagnet,  "Cours  de  Droit  international  public," 
pp.  81-84;  DuGUiT,  "Droit  constitulionnel,"  sees.  24-26;  FuNCK- 
Brentano,  "La  Politique,"  ch.  2;  Hall,  "International  Law,"  chs.  i 
and  2;  Held,  "System  des  \  erfassungsrechts,"  chs.  4,  5,  12;  Huhn, 
"Politik,"  ch.  2;  Jellixek,  "Recht  des  modernen  Staates,"  bk.  Ill, 
ch.  13;  Von  Moiil,  " Encyklop idle  der  Staatswissenschaften,"  sees. 
18  and  19;  Moore,  "Digest  of  Iitcrnational  Law,"  vol.  I,  sec.  128; 
Oppenheim,  "International  Law,"  vol.  I,  pt.  II,  ch.  i;  Pradier- 
FoDERE,  "Traite  de  Droit  international  public,"  vol.  I,  ch.  2;  Rimer, 
"Principes  du  Droit  des  Gens,"  vol.  I,  bk.  Ill,  ch.  i;  Schmidt, 
"Grundziige  der  praktischen  Politik,"  sees.  9  and  10;  Schulze, 
"Deutsches  Staatsrecht,"  vol.  I,  sees.  8-12;  Treitschke,  "Politik," 
vol.  I,  sec.  6;  Waitz,  "  Grundziige  der  Politik,"  pp.  1-9;  Wheaton, 
"Elements  of  International  Law,"  ch.  2,  sec.  2;  Woolsey,  "Political 
Science,"  vol.  I,  pt.  II,  ch.  3. 

I.    PEOPLE 

The  first  element  which  enters  into  the  physical  make-up 
of  the  state  is  the  population  v^hich  constitutes  its  member- 
ship. To  each  inhabitant  may  be  attributed  the  quality 
of  citizen  when  he  is  viewed  as  an  active  participator  in  the 
common  will,  and  of  subject  when  he  is  thought  of  as  a 
passive  member  with  no  share  in  the  public  power. ^  Le- 
gally all  persons  within  the  jurisdiction  of  the  state  are,  of 
course,  subjects  of  the  state,  and  in  most  monarchical 
countries  the  term  "subject"  is  commonly  employed  to 
designate  all  who  owe  obedience,  regardless  of  whether  they 
enjoy  full  civil  and  political  rights  or  not.     Citizenship  is 

^  Cf.  on  this  point  Rousseau,  "  Le  Contiat  social,"  bk.  I,  ch.  6,  and  Waitz^ 
"  Grundziige  der  Politik,"  pp.  21-24. 

66 


PEOPLE  67 

not  necessary  to  membership  in  the  state  for  certain  pur- 
poses, and  as  a  matter  of  fact  there  is  a  more  or  less  numer- 
ous body  of  aUens  in  every  state,  who  are  at  the  same  time 
members,  so  far  as  the  right  of  protection  and  the  duty  of 
obedience  are  concerned.  Citizenship,  however,  is  the 
normal  relation,  and  the  state  may  insist  upon  it  as  a  condi- 
tion to  the  enjoyment  of  civil  rights  as  well  as  political 
privileges.^ 

There  is  no  rule  or  political  practice  governing  the  num-  Amount 
ber  of  persons  necessary  to  entitle  a  community  to  recogni-  ^q^  ne"esl 
tion  as  a  state;   as  a  matter  of  fact  the  populations  of  the  sary  to 
existing  states  of  the  world  vary  quite  as  widely  as  the  areas  a  state 
of  their  territories.     Some  writers  in  the  past  have,  how- 
ever, undertaken  to  lay  down  within  broad  lines  certain 
principles  which  should  determine  the  amount  of  popula- 
tion necessary  to  the  existence  of  a  state,  and  some  have 
even  assumed  to  fix  exactly  the  minimum  and  maximum 
number  of  inhabitants;  but  manifestly  any  such  rules  must 
be  arbitrary  and   worthless.     Aristotle  was  certain    that 
there  ought  to  be  a  limit.     The  number,  he  said,  should 
neither  be  too  small  nor  too  large,  but  large  enough   to 
be  self-sufficing  and  small  enough  to  be   well   governed.^ 
Rousseau,  without  attempting  to  fix  upon  any  particular 
number,  laid  down  the  rule  that  there  should  be  a  certain 
proportion  between,  the  population  of  the  state  and  the 
extent  of  its  territory.     A  political  body,  he  declared,  may 

^  Compare  Bornhak,  "Allgemeine  Staatslehrc,"  p.  11. 

*  "Politics,"  VII,  4,  Jowett's  edition,  pp.  214-215 ;  also  "Nichomachean  Ethics," 
IX,  10,  p.  3.  The  German  writer  Schulze  in  considering  this  subject  asserts  very 
properly  that  no  definite  minimum  can  be  fixed  except  that  the  population  must 
exceed  the  number  embraced  within  a  single  family,  that  is,  it  must  comprise  a 
"circle"  of  families.  "Deutsches  Staatsrecht, "  vol.  I,  p.  16.  See  also  Bornhak 
{op.  cit.,  p.  16),  who  remarks  that  a  family  or  a  clan  may  become  the  nucleus  of 
a  state,  but  until  the  family  has  broken  up  and  expanded  into  a  race  there  can  be 
no  state.  Hauriou  ("Droit  administratif,"  p.  7)  lays  down  the  rule  that  the  popu- 
lation must  be  sufficient  to  make  possible  a  distinction  between  public  and  private 
affairs.  For  a  full  discussion  of  the  subject  see  Held,  "  System  des  Verfassungs- 
rechts,"  ch.  4. 


68  ESSENTIAL   ELEMENTS   OF   THE   STATE 

be  measured  in  two  ways,  viz.  by  the  extent  of  its  territory 
and  by  the  number  of  its  people,  and  there  is  between  these 
measurements  a  relation  which  should  give  to  the  state  its 
true  dimensions.  The  extent  of  land  should  be  sufficient 
to  nourish  the  inhabitants,  and  there  should  be  as  many 
inhabitants  as  the  land  can  sustain.'  In  another  place  he 
argued  that  the  larger  the  population  of  the  state,  the  less 
the  liberty  of  the  individual,  because  his  share  in  determin- 
ing the  sovereign  will  must  be  correspondingly  less.'  About 
the  nearest  approach  to  a  safe  rule  is  to  say  that  the  popu- 
lation must  be  sufficient  to  provide  both  a  governing  body 
and  a  number  of  persons  to  be  governed,  and  of  course 
sufficient  to  support  a  state  organization.  If  the  other 
elements  are  fully  present,  this  number  need  not  be  con- 
siderable. Changes  in  the  population  of  the  state,  of  course, 
have  no  more  effect  upon  its  corporate  existence  than  do 
changes  in  the  territorial  area.  Populations  are  con- 
tinually augmented  by  natural  increase  and  by  immigra- 
tion and  decreased  by  emigration  and  other  causes,  but 
unless  the  loss  is  so  great  as  to  render  the  maintenance  of  a 
state  organization  impossible  the  existence  of  the  state 
remains  unaffected. 

II.     TERRITORY 

Another  physical  constituent  in  the  make-up  of  the  state 
is  the  land  or  territory  which  serves  as  the  abiding  place  of 
those  who  constitute  its  membership.  In  a  peculiar  sense 
territory  is  the  physical  basis  of  the  state. ''     "As  the  state 

^  "Le  Contrat  sociil,"  bk.  II,  ch.  lo. 

^  Ibid.,  bk.  Ill,  ch.  i.  Thus,  he  reasoned,  if  the  population  of  the  state  is  ten 
thousand  citizens,  each  citizen's  share  in  determining  the  sovereign  will  is  one  ten- 
thousandth;  whereas  if  the  population  is  one  hundred  thousand,  his  share  is  only 
one  hundred-thousandth,  or  one  tenth  as  great. 

^  Cf.  Jellinek,  "Recht  des  mod.  Staates,"  p.  73.  "Die  N otwendigkeit  des  Bodens 
fiir  den  Staat  ist  ilher  alien  Zweifel  erhoben,"  observes  Ratzel  in  his  "AnthropKJgeo- 
graphie"  (pt.  I,  p.  66).  "Weil  der  Stait  ohne  Boden  und  Grenzen  nicht  zu  denken 
ist,  hat  sich  schon  friih  eine  politische  Ceographie  eultvickelt,  und  wenn  auch  die 
Staats-wissenschaft  die  Raum-  und  Lagebedingungen  der  Staaten  oft  ubersah,  so  ist 


TERRITORY  69 

has  Its  personal  basis  in  the  people,"  says  Bluntschli,  "it 
has  its  natural  basis  in  the  land ;  a  people  does  not  become 
a  permanent  state  till  it  has  acquired  a  territory."  ^  A 
population  unattached  to  a  definite  portion  of  the  earth's 
surface  is  nothing  more  than  a  wandering  horde  or  migra- 
tory band.  History  abounds  in  examples  of  nomadic 
peoples  like  the  Jews  after  their  dispersion  and  before  their 
settlement  in  Palestine,  the  German  tribes  during  their 
wanderings  after  the  break-up  of  the  Roman  Empire,  the 
"trekking"  Boers  of  South  Africa  after  the  abandonment 
of  their  original  lands  for  a  new  home  to  the  north,  but 
until  they  ceased  wandering  and  settled  themselves  upon 
a  definite  portion  of  territory  they  never  became  states, 
though  they  may  have  been  states  in  the  making.  There 
can  be  no  such  thing  as  a  migratory  state.  The  state,  as 
its  etymological  meaning  suggests,  is  associated  with  a 
fixed  abode. ^  Sovereignty  is  no  longer  considered  personal 
but  territorial. 

dock  eine  den  Boden  vernachldssigende  Staatslehre  immer  eine  voriibergehende 
Tauschiing  geivesen." 

'  "  Allgemeine  Staatslehre,"  bk.  Ill,  ch.  4. 

^  This  is  the  opinion  of  Jellinek,  op.  cit.,  pp.  72-74;  Von  Mohl,  "Encyklopadie," 
sec.  19;  Rivier,  "Principes,"  etc.,  vol.  I,  pp.  135-136;  Duguit,  "Droit  constitution- 
nel,"  sees.  24-26;  Schmidt,  "  Grundzuge  der  praktischen  Politik,"  sec.  9;  Wheaton, 
"Elements,"  ch.  2,  sec.  2;  Oppenheim,  "International  Law,"  vol.  I,  pt.  II,  ch.  i; 
Ptadier-Fodere,  "Traite,"  vol.  I,  p.  152;  Phillimore,  "International  Law,"  vol.  I, 
ch.  i;  Hauriou,  "Droit  administratif,"  p.  7;  Bluntschli,  "Allgemeine  Staatslehre," 
bk.  Ill,  ch.  4  ;  Carnazza-Amari,  "  Droit  int.  pub.,"  vol.  I,  p.  196;  and  Held,  "Sys- 
tem des  Verfassungsrechts,"  ch.  5.  The  latter  writer  discusses  fully  the  legal  and 
physical  aspects  of  territory  as  a  constituent  element  of  the  state.  There  are  a  few 
writers,  however,  who  do  not  seem  to  consider  territory  as  an  indispensable  element 
in  the  constitution  of  the  state.  So  high  an  authority  as  Holland  in  the  definition  of 
the  state  quoted  in  the  preceding  chapter  says  a  state  is  a  numerous  assemblage  of 
persons  generally  occupying  a  certain  territory,  etc.,  thus  implying  the  possibility  of 
a  non-territorial  state.  Hall  takes  the  same  view.  "Abstractedly,"  he  says,  "there 
is  no  reason  why  even  a  wandering  tribe  or  society  should  not  feel  itself  bound  as 
stringently  as  a  settled  community  by  definite  rules  of  conduct  toward  other  com- 
munities," though  he  confesses  that  the  "circumstances  of  modern  civilization  which 
associate  land  with  sovereignty  make  the  possession  of  a  fixed  territory  a  practical 
necessity."     "International  Law,"  p.  20. 


70 


ESSENTIAL   ELEMENTS   OF   THE   STATE 


What  is 
included 
within  a 
State's 
Territory 


Ownership 
of  the 
Land  is 
Private, 
not  Public 


The  territory  of  the  state  consists  not  only  of  a  definite 
portion  of  land,  but  also  of  the  rivers,  lakes,  and  canals 
within  its  limits,  and  if  the  state  touches  upon  an  open  sea  it 
includes  in  addition  a  maritime  belt  generally  recognized  to 
be  three  miles  in  width  measured  from  low-water  mark.  ^ 
Whether  this  maritime  belt  is  to  be  considered  actually  as 
part  of  the  territorial  domain  of  the  state  or  merely  a  part 
of  the  open  sea  over  which  the  state  is  permitted  by  the  law 
of  nations  to  exercise  jurisdiction  for  certain  purposes,  there 
is  a  difference  of  opinion  among  publicists.^  The  territorial 
domain  of  the  state  is  not  the  property  of  the  state  or  of 
any  ruler;  the  patrimonial  state,  in  which  the  monarch  was 
considered  the  ultimate  owner  of  the  land,  is  a  thing  of  the 
past.  Rulers  can  no  longer,  as  they  often  did  in  medieval 
times,  sell,  pawn,  give  away,  or  partition  their  domains  as 
though  they  were  private  property.^  The  modern  state 
exercises  imperium,  not  dominium,  over  the  land  embraced 
within  its  limits;  that  is,  the  ownership  of  the  land  belongs 
to  private  individuals,  subject  always,  of  course,  to  the  right 
of  expropriation  by  the  state  for  public  purposes.*  The 
right  of  private  ownership  has  become  so  completely  dis- 
sociated from  the  old  patrimonial  idea  that  cessions  of 
territory  to  foreign  states,  according  to  the  public  law  of 
the  civilized  world,  are  no  longer  considered  as  affecting 
in  the  least  the  private  ownership  of  the  lands  so  alienated. 

^  Hall,  "International  Law,"  sec.  30.  The  Institute  of  International  Law  has 
voted  in  favor  of  fixing  the  maritime  belt  at  six  miles  instead  of  three.  "  Annuaire," 
vol.  XIII,  p.  328.  For  the  enforcement  of  its  revenue  and  sanitary  laws  the  juris- 
diction of  the  state  over  a  wider  zone  is  often  asserted  and  properly  conceded. 

^  See  Oppenheim,  "International  Law,"  vol.  I,  p.  240,  for  a  discussion  of  the  two 
views.  The  increasing  importance  of  the  atmosphere  for  purposes  of  telegraphic 
communication  and  aeronautic  transportation  is  likely  in  time  to  raise  important 
questions  concerning  the  extent  of  the  state's  control  over  the  atmosphere  above  its 
territory.  See  vol.  XIX  of  the  "Annuaire"  of  the  Institute  of  International  Law, 
on  this  subject. 

^  On  this  point  see  Bluntschli,  "  Allgemeine  Staatslehre,"  bk.  Ill,  ch.  5. 

*  A  state  may,  of  course,  own  large  areas  of  land  (this  is  true,  for  example,  of  the 
United  States,  Canada,  and  Australia)  in  which  case  it  is  a  proprietor  as  well  as  a 
sovereign  and  exercises  over  such  lands  dominium  as  well  as  imperium. 


TERRITORY  71 

The  territory  of  the  state  may  be  "integrate"  and  contigu- 
ous, Hke  that  of  Switzerland;  or  it  may  be  dismembered 
and  a  part  of  it  non-contiguous,  Hke  that  of  Great  Britain; 
or  it  may  be  an  enclave,  that  is,  entirely  inclosed  within 
the  territory  of  another  state,  like  the  Republic  of  San 
Marino,  for  example,  which  is  an  inclosure  of  Italy/ 

State  boundaries  may  be  natural  or  artificial,  that  is,  state 
they  may  be  bodies  of  water,  mountain  ranges,  deserts,  ^.^1^°'  *' 
forests,  and  the  like,  or  mere  surveyors'  lines  marked  by 
posts,  monuments,  stones,  trenches,  walls,  etc.  If  the  boun- 
dary is  a  navigable  stream,  the  line  ordinarily  runs  through 
the  middle  of  the  most  navigable  channel,  the  filum  aqiicB 
or  Thalweg;  if  non-navigable,  it  follows  an  imaginary  line 
midway  between  the  two  banks.  Where  mountain  ranges 
constitute  the  boundary,  the  dividing  line,  in  the  absence 
of  special  treaty  stipulations,  follows  the  crest  of  the  water- 
shed. Disputes  concerning  boundaries  between  states 
have  been  common  in  the  past  and  are  not  infrequent  even 
to-day  among  the  newer  states  of  the  world.  During  the 
nineteenth  century  the  boundaries  of  various  European 
states,  notably  those  of  Turkey,  Bulgaria,  Servia,  Monte- 
negro, and  Roumania,  were  adjusted  by  international  com- 
missions created  by  general  treaty  arrangements.^ 

The  extent  of  a  state's  territory  has  an  important  bear-  Area  as  a 
ing  not  only  on  the  question  of  its  capacity  for  self-defense,   strength 
its  power  and  influence  in  the  family  of  nations,  but  to  some  or  Weak- 
extent  upon  the  form  of  its  governmental  organization  and 
its  activities.     There  is  some  difl"erence  of  opinion  among 
practical   statesmen   as  well   as   political    theorists  as   to 
whether  vastness  of  territorial  domain  is  a  source  of  strength 

^  Formerly  there  were  numerous  examples  of  enclaves  in  Germany.  Birkenfeld, 
a  part  of  the  Grand  Duchy  of  Oldenburg,  is  to-day  entirely  surrounded  by  Prussian 
territory. 

^  For  a  discussion  of  the  subject  of  boundaries  see  Oppenheim,  "International 
Law,"  vol.  I,  pp.  253-263;  Moore,  ''Digest  of  International  Law,"  sec.  128;  Hall, 
"International  Law,"  pp.  128-129;  Iowa  v.  Illinois,  127  U.  S.  i;  Keokuk  and 
Hamilton  Bridge  Co.  v.  Illinois,  175  U.  S.  626. 


72 


ESSENTIAL   ELEMENTS   OF   THE   STATE 


No  Rule 

as  to  the 
Extent  of 
Territory 
for  a 
State 


or  weakness,  especially  when  part  of  the  territory  is  non- 
contiguous, remotely  situated,  and  inhabited  by  alien  races. 
On  the  whole,  however,  the  advantage  seems  to  be  on  the 
side  of  empire,  and  it  is  the  ambition  of  most  modern  states 
to  increase  the  extent  of  their  territories.  In  recent  years 
we  have  seen  something  of  a  scramble  among  European 
states  for  additional  land  in  Africa,  and  even  the  United 
States,  which  until  lately  was  satisfied  to  pursue  its  destiny 
on  the  continent  of  North  America,  has  acquired  extensive 
dominions  beyond  the  seas. 

There  is  no  rule  or  practice  concerning  the  extent  of 
territory  necessary  to  constitute  the  home  of  a  state,  any 
more  than  there  is  regarding  the  amountof  population.  As 
a  matter  of  fact,  states  have  varied  in  size  all  the  way  from 
the  city  states  of  antiquity  to  the  vast  empires  of  to-day. 
At  the  present  time  they  vary  from  the  petty  republics  of 
Monaco  and  San  Marino,  embracing  only  a  few  hundred 
square  miles  of  territory,  to  the  British  and  Russian  empires 
and  the  United  States,  containing  millions  of  square  miles. 
There  have  always  been  small  states,  both  monarchies  and 
republics,  and  they  have  maintained  themselves  by  the  side 
of  their  more  powerful  neighbors  until  this  day.  It  is, 
therefore,  absurd,  as  Bluntschli  remarks,  to  try  to  fix  a 
limit  to  their  size.^  During  the  medieval  age  the  states  of 
Europe  were  small  and  numerous.  The  present  states  of 
France,  Italy,  Germany,  and  Spain  were  all  divided  into  a 
number  of  petty  monarchies  and  republics.  Almost  every 
lordship,  says  Bluntschli,  many  towns  and  even  villages 
maintained  independent  existences  with  their  own  consti- 
tutions. But,  on  the  whole,  the  territorial  area  of  states 
has  increased  since  the  seventeenth  century.  The  modern 
tendency  is  toward  a  consolidation  of  those  whose  territo- 
ries lie  within  the  same  geographic  unity  and  whose  popu- 
lations belong  to  the  same  nationality;  and  hence  the  states 
of  the  future  in  all  probability  are  likely  to  be  more  extensive 

*  "AUgemeine  Staatslehrc,"  bk.  Ill,  ch.  4. 


TERRITORY  73 

in  area  than  those  of  the  present.  The  increasing  need  of 
the  European  states  for  more  territory  in  which  to  develop 
their  national  energy,  for  the  support  of  their  surplus  popu- 
lation, and  for  their  expanding  commerce  has  in  late  years 
led  to  an  organized  movement  among  them  to  take  posses- 
sion of  such  uninhabited  portions  of  the  globe  as  remain 
unclaimed.  Within  a  very  few  years  the  greater  part  of 
Africa  has,  as  has  been  said,  been  partitioned  out  among  the 
powers  of  Europe.  So  rapid  has  been  the  movement  that 
it  has  been  impossible  to  take  effective  possession  of  these 
vast  territories  except  at  a  few  accessible  points,  and  the 
consequence  has  been  the  invention  of  a  curious  political 
institution,  known  as  the  "sphere  of  influence,"  as  a  means 
of  delimiting  the  share  of  each  claimant.^  The  practice  of 
leasing  territories  from  other  states  for  commercial,  mili- 
tary, and  naval  purposes,  where  they  cannot  be  purchased 
or  otherwise  acquired,  has  also  recently  been  adopted 
by  a  number  of  governments.^ 

About  all  that  can  be  said  in  regard  to  the  extent  of  terri-  Limits  to 
tory  is  that  it  ought  to  be  large  enough  to  sustain  the  popu- 
lation. Rousseau,  in  his  "Le  Contrat  social,"  discussed  the 
subject  at  some  length  and  attempted  to  lay  down  certain 
general  principles  regarding  the  size  of  the  state  as  he  did 
in  regard  to  the  amount  of  population.  Nature,  he  de- 
clared, has  fixed  a  limit  to  the  territory  of  the  state  as  to  the 
stature  of  a  well-proportioned  man.  It  ought  not  to  be  too 
vast  in  extent  to  be  well  governed  nor  too  small  to  maintain 
itself.  Administration,  he  asserted,  becomes  difficult  at 
great  distances,  as  a  weight  becomes  heavier  at  the  end  of  a 
long  lever.  It  becomes  more  onerous  in  proportion  as  de- 
grees are  multiplied,  and  it  enforces  the  laws  in  remote  com- 
munities with  less  vigor  and  celerity,  while  the  people  feel 

*  See  Keltie,  "Partition  of  Africa,"  ch.  23. 

^Within  recent  years  Great  Britain,  Germany,  and  Russia  have  leased  territory 
from  China;  the  United  States  from  Cuba;  Belgium  from  Great  Britain  on  the 
Upper  Nile ;  and  France  from  Great  Britain  on  the  Niger. 


the  Size 
of  a  State 


74  ESSENTIAL   ELEMENTS   OF   THE   STATE 

less  affection  for  a  government  with  which  they  rarely  come 
in  contact/  Some  writers,  in  discussing  the  subject,  dis- 
tinguish between  democracies  and  monarchies.  The  nat- 
ural limit  of  a  democracy,  said  Madison,  is  that  distance 
from  the  central  point  which  will  just  permit  the  most 
remote  citizens  to  assemble  as  often  as  their  public  functions 
demand,  and  will  include  no  greater  number  than  can  join 
in  those  functions;  so  that  the  natural  limit  of  a  republic 
is  that  distance  from  the  center  which  will  barely  allow 
the  representatives  to  meet  as  often  as  may  be  necessary 
for  the  administration  of  public  affairs.^  Alexander  Hamil- 
ton pointed  out  that  vast  extent  of  territory  contributes  to 
the  natural  strength  of  the  people,  while  smallness  of  terri- 
tory encourages  usurpers  to  make  attempts  upon  their 
liberties.  The  smaller  the  territory,  he  said,  the  more 
difficult  for  the  people  "to  form  a  regular  or  systematic 
plan  of  opposition,"  while  the  larger  the  territory,  the  more 
"competent  the  people  to  a  struggle  with  the  attempts  of 
the  government  to  establish  a  tyranny."  ^ 
Territorial  Nevertheless,  as  Bluntschli  remarks,  the  power  of  a 
ttie  Meas°*  State  is  uot  always  to  be  measured  by  its  mere  extent.* 
ure  of  a  Thus  France  and  Germany,  with  nearly  one  tenth  the  terri- 
Greatness  tory,  are  more  powerful  states  than  Russia.  The  European 
territory  of  Great  Britain  comprises  only  about  half  the 
superficial  area  of  either  Germany  or  France,  yet  without 

'  "Le  Contrat  social,"  bk.  II,  ch.  9. 

2  "The  Federalist  "  (Ford's ed.),  p.  83. 

'See  "The  Federalist,"  No.  28,  also  No.  63.  It  was  one  of  Montesquieu's 
maxims  that  liberty  flourishes  most  in  small  states.  In  large  states,  he  argued,  the 
necessity  of  holding  together  widely  separated  regions  and  of  reconciling  conflicting 
interests  due  to  geographical  isolation  requires  strong  government  and  a  corre- 
sponding abridgment  of  freedom.  But  many  instances  could  be  given  to  show  the 
fallacy  of  this  proposition.  Equally  fallacious  is  his  theory  that  cold  climates  are 
favorable  to  liberty  and  warm  ones  to  servitude  and  that  democracy  is  better  adapted 
to  barren  soils  than  is  monarchy.  "  Esprit  des  Lois,"  bks.  14,  17,  and  18.  For  a 
criticism  of  Montesquieu's  theories  of  the  eS'ect  of  geographical  influences  on 
liberty,  see  Lavelcye,  op.  cit.,  vol.  I,  bk.  IV,  chs.  10,  11,  12. 

*  "Allgemeine  Staatslehre,"  bk.  Ill,  ch.  4. 


TERRITORY  75 

Its  dependencies  it  would  compare  favorably  in  power  and 
influence  with  either.  The  Greek  city  states  were  petty 
indeed  in  point  of  territory,  yet  Athens  took  her  place  by 
the  side  of  Rome  in  the  history  of  the  world.  A  state  with 
vast  extent  of  territory,  especially  when  a  part  of  it  is  non- 
contiguous and  remote,  is  difficult  to  defend  in  war,  and 
vigilance  as  well  as  power  may  be  necessary  to  protect  the 
outlying  dependencies. 

A  city  state  or  a  country  state  of  small  area  is  obviously  Effect  of 
better  suited  to  certain  forms  of  government  and  methods  a^stairon^ 
of  administration  than  a  state  of  vast  area  where  some  of  its  Form  of 
the  parts  are  remotely  situated  from  the  seat  of  govern-  ment 
ment.     A    pure    democracy    might    be    successful    in    the 
former  when  it  would  be  unworkable  in  the  latter.     The 
republican  form  of  government,  Jellinek  observes,  is  well 
adapted  to  small  states,  while  monarchy,  as  a  rule,  is  better 
suited  to  large  ones,  though  he  admits  that  recently  the 
success  of  certain  great  democratic  republics  has   thrown 
doubt  on  the  rule.^      "There  is,"  says  John  Stuart  Mill, 
"a  limit  to  the  extent  of  country  which  can  be  advanta- 

'  "Recht  des  mod.  Staates,"  p.  74.  Montesquieu,  as  is  well  known,  recommended 
a  small  extent  of  territory  for  republics  ("Esprit  des  Lois,"  bk.  9,  ch.  i).  "The 
history  of  the  world,"  wrote  De  Tocqueville,  "offers  no  instance  of  a  great  nation 
retaining  the  form  of  a  republican  government  for  a  long  series  of  years.  ...  It 
may  be  advanced  with  confidence  that  the  existence  of  a  great  republic  will  always  be 
exposed  to  far  greater  dangers  than  that  of  a  small  one.  .  .  .  All  the  passions  which 
are  most  fatal  to  republican  institutions  spread  with  an  increasing  territory,  while 
the  virtues  which  maintain  their  dignity  do  not  augment  in  the  same  proportion." 
"  Democracy  in  America,"  tr.  by  Reeves,  vol.  I,  p.  170.  In  the  debates  on  the  Con- 
stitution of  the  United  States  in  1788  the  argument  was  advanced  that  the  territorial 
extent  of  the  union  was  "  too  vast  and  too  differently  circumstanced  to  make  a  general 
government  possible."  See  "The  Federalist,"  No.  i.  Madison  answered  the  objection 
that  a  republican  government  must  be  confined  to  a  small  district  by  pointing  out 
that  the  objection  was  due  to  a  confusion  of  republican  government  with  a  democ- 
racy. "  Federalist,"  No.  14.  Jefferson  wrote,  in  1801,  of  the  triumph  of  the  Demo- 
cratic party :  "  It  furnishes  a  new  proof  of  the  falsehood  of  Montesquieu's  doctrine  that 
a  republic  can  be  preserved  only  in  a  small  territory.  Had  our  territory  been  only  a 
third  of  what  it  is,  we  were  gone."  Ford's  edition  of  "The  Federalist,"  p.  50. 
But,  says  Ford,  time  would  have  justified  the  predictions  of  the  objectors  but  for 
the  changed  conditions  wrought  by  the  railroad  and  telegraph.     Ibid.,  p.  6,  note  i. 


76 


ESSENTIAL   ELEMENTS   OF   THE   STATE 


Effect  of 
Changes 
in  Area 
on  the  Ex- 
istence of 
the  State 


Influence 
of  Topog- 
raphy and 
Climate 


geously  governed  or  even  whose  government  can  be  con- 
veniently superintended  from  a  single  center."  "There 
are,"  he  said,  "vast  countries  so  governed;  but  they,  or 
at  least  their  distant  provinces,  are  in  general  deplorably 
ill  administered,  and  it  is  only  when  the  inhabitants  are 
almost  savages  that  they  could  not  manage  their  affairs 
better  separately."  ^ 

The  enlargement  or  reduction  of  the  territorial  area  of  the 
state  does  not  ordinarily  affect  its  international  capacity  or 
interrupt  the  continuity  of  its  life.  Sardinia,  for  example, 
was  enlarged  to  nearly  four  times  its  original  area  and  its 
name  changed,  yet  its  identity  was  never  considered  de- 
stroyed nor  its  treaty  obligations  impaired.  Prussia,  after 
the  peace  of  Tilsit  in  1807,  lost  nearly  one  third  of  its 
territory;  Saxony  by  the  treaty  of  Vienna  in  18 15  was 
reduced  to  one  half  its  former  size;  France  in  18 15  and  1871, 
Turkey  in  1829  and  1878,  Austria  in  1859  and  1866,  Mex- 
ico in  1848,  —  all  lost  more  or  less  considerable  portions  of 
their  territory  but  in  no  case  was  the  corporate  existence 
of  the  state  affected.^  As  an  international  entity  the 
state,  however,  may  cease  to  exist  by  being  annexed  to 
another  state,  by  voluntarily  merging  itself  into  another 
state,  by  being  absorbed,  or  by  partition  of  its  territory 
among  neighboring  states. 

Geographical  situation  and  the  shape  and  conformation 
of  the  territory,  as  well  as  extent  of  domain,  have  an  im- 
portant bearing  upon  the  institutions  and  national  life  of 
the  state.  These  factors  determine  the  occupations  and 
industries  of  the  people,  the  extent  and  variety  of  the  nat- 


'"  Representative  Government,"  ch.  17.  Cf.  also  De  Tocqueville:  "It  may 
be  asserted  as  a  general  proposition  that  nothing  is  more  opposed  to  the  well-being 
and  the  freedom  of  man  than  vast  empires.  ...  If  none  but  small  nations  existed, 
mankind  would  be  more  happy  and  more  free."  "Democracy  in  America,"  vol.  I, 
p.  171. 

^  Compare  on  this  point  Martens,  "Traite  de  Droit  international,"  vol.  I,  sec.  68; 
Rivier,  "Principes,"  vol.  I,  pp.  63-65;  Moore,  "Digest  of  International  Law,"  vol. 
I,  p.  248;  Oppenheim,  "International  Law,"  vol.  I,  pp.  114-118. 


TERRITORY  77 

ural  resources,  and  to  some  extent  the  national  character 
and  even  the  laws,  institutions,  and  activities  of  govern- 
ment/ Many  of  the  great  political  writers  of  the  past,  like 
Plato,  Aristotle,  Machiavelli,  Bodin,  Montesquieu,  Comte, 
and  Hume,  dwelt  upon  the  influence  of  natural  phe- 
nomena upon  the  character  and  institutions  of  nations. 
Buckle,  in  his  "History  of  Civilization,"  emphasized  to  the 
point  of  exaggeration,  as  has  been  said,  the  influence  of 
climate,  soil,  and  food  upon  the  industrial,  intellectual,  and 
political  development  of  certain  states.^  Montesquieu,  in 
his  "Esprit  des  Lois"  (bks.  14-18),  undertook  to  establish 
a  connection  between  climatic  influences  and  the  laws  of 
the  state  and  between  the  fertility  of  the  soil  and  forms  of 
government.  His  conclusions,  however,  abound  in  para- 
doxes, and  his  estimate  of  the  effect  of  climatic  influences 
was  greatly  exaggerated.^ 

That  the  course  of  history  —  economic,  social,  and  politi-  influence 
cal  —  has,  however,  been  determined  at  many  points   by  graphic 
geographical  factors  is  incontestable.*     The  existence  of  the  Unity 

^  Von  Mohl,  "Encyklopadie  der  Staatswissenschaften,"  p.  131;  Jellinek, 
"  Recht  des  mod.  Staates,"  bk.  Ill,  ch.  13,  tit.  i ;  Treitschke,  "  Die  Politik,"  vol.  I, 
sec.  6;  Ratzel,  "  Anthropo-geographie,"  p.  531  fJ;  Zacharia,  "  Vierzig  Bucher  vom 
Staate,"  bk.  9;  and  Huhn,  "Politik,"  ch.  i. 

-  Ch.  2.  For  a.n  argument  against  the  view  that  climatic  influences  determine 
national  character,  see  Hume's  essay  on  "National  Character,"  "Essays,"  vol.  I, 
p.  21.  Hume  says,  "  I  do  not  believe  that  man  ever  in  his  spirit  or  destiny  ovi'ed  any 
thanks  to  atmosphere,  food,  or  climate." 

^  Sorel's  Montesquieu  (trans,  by  Anderson),  pp.  140-141 ;  see  also  Pollock, 
"History  of  the  Science  of  Politics,"  p.  83. 

*  On  this  point  see  George,  "  Relation  of  Geography  to  History  "  ;  Semple,  "  ."Ameri- 
can History  and  its  Geographical  Conditions" ;  Smith,  "  Geography  of  the  Holy 
Land";  Ratzel,  "Politische  Geographie  der  Vereinigten  Staaten  von  Amerika," 
also  his  "Anthropo-geographie";  Freeman,  "  Historical  Geography  of  Europe"; 
Keltic,  "Applied  Geography."  "To  a  trifling  geographical  incident,"  says  Shaler, 
"  we  owe  the  isolation  of  Great  Britain  from  the  European  continent ;  and  all  the 
marvelous  history  of  the  English  folk,  as  we  all  know,  hangs  upon  the  existence  of 
that  narrow  strip  of  sea  between  the  Devon  coast  and  the  kindred  lowlands  of 
northern  France."  "  The  independent  political  development  of  England  for  the  last 
thousand  years,"  he  continues,  "has  been  in  a  large  part  due  to  the  measure  of  pro- 
tection afforded  by  the  British  Channel.   While  every  other  country  on  the  continent 


7S  ESSENTIAL   ELEMENTS   OF   THE   STATE 

petty  states  of  ancient  Greece,  and  the  virtual  failure  of 
all  attempts  to  unite  them,  separated  as  they  were  by  inter- 
secting mountain  ranges  and  arms  of  the  sea,  afford  one  of 
the  earliest  and  most  striking  illustrations  of  this  truth. 
Nothing  is  clearer  than  that  geographic  isolation  is  un- 
favorable to  political  unity.  It  not  only  retards,  in  the 
beginning,  the  unification  of  neighboring  races,  but  also 
the  union  of  different  communities  of  the  same  race;  it  pro- 
motes prejudices  and  want  of  sympathy,  and,  when  po- 
litical union  has  once  been  established,  particularism  and 
disunion.  Moreover,  lack  of  geographic  homogeneity 
determines  to  a  certain  extent  the  activities,  if  not  the  form, 
of  government.  People  occupying  the  different  parts  of  a 
state  which  are  separated  from  each  other  by  high  moun- 
tain barriers,  impenetrable  deserts,  or  large  bodies  of 
water  develop  local  peculiarities  and  have  local  needs 
which  require  special  legislation.  An  insular  state  like 
England  is  not  only  economically  dependent  upon  dis- 
tant parts  of  the  world,  but  by  reason  of  its  exposure  to 
attack  from  the  outside  must  give  constant  attention  to 
questions  of  national  defense.^  The  fact  that  Switzerland 
has  maintained  its  local  life  comparatively  undisturbed 
by  the  powerful  states  about  it  for  more  than  a  thousand 
years  is  due  largely  to  the  geographical  conditions  which 

of  Europe,  except  Scandinavia,  which  is  itself  largely  a  geographical  isolation,  has 
felt  again  and  again  the  tread  of  conquering  armies,  this  group  of  islands  has  been 
exempt  from  successive  invasions.  Many  v/ere  attempted,  and  some  would  have 
succeeded  without  the  geographical  barrier  which  nature  had  interposed."  "Na- 
ture and  Man  in  America,"  pp.  153,  159. 

*  Of  the  influence  of  geographic  conditions  upon  the  politics  of  England,  Professor 
Shaler  says:  "In  the  wonderful  state  of  Great  Britain  the  national  life  functions 
vary  with  reference  to  the  topography  of  high  Asia,  the  climate  and  surface  of  Africa, 
and  certain  portions  of  other  countries ;  and  almost  every  storm  and  every  drought 
which  affects  the  remotest  lands  and  seas  reacts  upon  that  state.  Ministers,  and  wit) 
them  the  purposes  of  the  state,  are  changed  by  the  chance  of  some  battlefield  at  the 
antipodes.  A  bad  harvest  in  the  plains  of  the  upper  Mississippi  means  dear  bread  in 
England,  fewer  marriages,  and  shorter  lives ;  in  other  words  it  produces  an  effect 
upon  the  social  status  of  the  country."     "  Nature  and  Man  in  America,"  p.  149. 


GOVERNMENT   AND    SOVEREIGNTY  79 

environ  its  folk.  It  might  also  be  shown  that  the  distinc- 
tive political  ideas  and  institutions  of  the  Dutch  have  been 
determined  to  some  extent  by  the  geographical  situation 
of  that  country  and  the  heroic  struggle  with  nature  which 
it  has  entailed/ 

III.     GOVERNMENT   AND   SOVEREIGNTY 

A  third  essential  mark  of  the  state  is  the  existence  of  an  Necessity 
agency  through  which  the  collective  will  may  be  ascertained  cai^organ- 
and  expressed  and  the  ends  of  the  state  realized.  This  ization 
agency,  magistracy,  contrivance,  or  organization  we  call 
government.  A  mere  mass  of  people  occupying  a  particu- 
lar portion  of  territory  do  not  constitute  a  state  until  they 
have  organized  themselves  politically  and  established  a  civil 
government.  They  must,  in  short,  possess  a  juristic  per- 
sonality and  have  a  common  will.^  The  governmental 
organization  may  be  simple  and  its  functions  few  and 
restricted  in  -their  sphere  of  operation,  but  there  must  be 
a  political  agency  of  some  kind ;  there  must  be  governors  and 
governed  —  some  who  command  and  others  who  obey.  If 
there  are  none  who  possess  authority  and  none  who  obey, 
remarks  Bluntschli,  there  is  no  state  but  only  a  condition  of 
anarchy.^  In  the  great  states  of  to-day  the  governmental 
organization  is  vast  in  extent  and  complex  in  structure, 
but,  as  in  the  case  of  territory  and  population,  quantity 
and  extent  are  not  the  tests  of  statehood.  The  simple 
rudimentary  government  of  an  African  prince,  if  capable  of 
commanding  and  enforcing  obedience,  fulfills  the  require- 
ments of  political  organization. 

A  final  constituent  political  principle  of  the  state  is  sover-  Sover- 
eignty, in  some  respects  the  most  important  and  distinctive  "^*^ 

'  Cf.  Keltic,  "Applied  Geography,"  p.  7. 

^  Cf.  Schulze,  "Deutsches  Staatsrecht/'  vol.  I,  p.  17;  Hauriou,  "Droit  adminis- 
tratif,"  p.  7;  Von  Mohl,  "  Encyklopadie,  "  p.  72;  Jellinek,  "Recht  des  mod. 
Staates,"  pp.  152-155;   Duguit,  "Droit  constitutionnel, "  p.  19. 

'  "  AUgemeine  Staatslehre,"   bk.  I,  ch.  i. 


8o     ,  ESSENTIAL   ELEMENTS    OF    THE    STATE 

of  all  the  marks  of  state  organization.  In  popular  usage, 
sovereignty  means  the  original,  supreme,  and  unlimited 
power  of  the  state  to  impose  its  will  upon  all  persons,  asso- 
ciations, and  things  within  its  jurisdiction ;  in  short,  it  is  that 
quality  of  the  state  by  virtue  of  which  it  may  command  and 
enforce  obedience  to  the  exclusion  of  all  other  wills.  In 
popular  usage  the  term  also  has  reference  to  the  independ- 
ence of  the  state  from  foreign  control,  that  is,  its  right  to 
live  its  life  and  pursue  its  ends  independently  of  the  will  of 
other  states.  The  former  attribute  is  sometimes  described 
as  internal  sovereignty,  the  latter  as  external  sovereignty. 
Sovereignty  is  thus  a  concept  both  of  municipal  law  and 
of  international  law.  Whatever  may  be  the  differences  of 
opinion  regarding  its  nature  and  abiding  place,  the  majority 
of  writers  are  agreed  that  there  can  be  no  state  without 
sovereignty.  There  must  be  some  supreme  power  which 
in  the  last  analysis  is  entitled  to  lay  down  commands  and 
able  to  compel  obedience.^  It  is  this  which  distinguishes 
the  state  from  all  other  associations  and  organizations. 
Take  it  away  and  the  state  becomes  a  mere  voluntary  pact 
or  association. 

Nevertheless,  a  few  writers  of  high  standing  do  not 
consider  sovereignty  to  be  an  essential  element  of  state 
existence.  There  are  many  communities,  they  maintain, 
which  have  their  own  constitutions  and  systems  of  internal 
administration,  and  hence  may  be  rightfully  described  as 
states,  though  they  may  be  under  the  control,  wholly  or 
in  part,  of  other  states,  so  far  as  their  foreign  relations 
are  concerned.^     Such  are  the  so-called  protectorates  and 

*  "Sovereign  and  subject,  governors  and  governed,"  says  Gumplowicz  ("Allge- 
meines  Staatsrecht,"  p.  23),  "are  the  everlasting,  unchangeable  ear-marks  of  states. 
There  are  no  states  without  this  principle  and  no  such  principle  without  the  state." 

*  See,  for  example,  Westlake  ("  International  Law,"  vol.  I,  p.  21),  who  maintains 
that  external  sovereignty  is  not  essential  to  constitute  a  state  in  international  law. 
Westlake  maintains  the  distinction  between  sovereignty  and  independence.  The 
former,  he  says,  admits  of  degrees,  while  the  latter  does  not,  and  hence  a  state  may 
be  partly  sovereign,  but  not  partly  independent.     Yet  he  says  elsewhere  that  from 


OTHER   ATTRIBUTES   AND    ASPECTS    OF   THE    STATE       8i 

suzerain  communities  which  abound  in  Africa  and  the 
orient.  Some  of  them  are  free  from  outside  control  so  far 
as  their  internal  polity  is  concerned,  and  sometimes  to  a 
large  extent  as  regards  their  foreign  relations.  Some  of 
them  send  and  receive  diplomatic  representatives  or  at 
least  consuls,  and  sometimes  they  conclude  commercial 
conventions  or  treaties.  Such  communities  are  classified 
as  dependent  or  part-sovereign  states,  but  according  to 
the  strict  tests  of  political  science  they  are  not  states,  but 
parts  of  other  states.  They  may  become  states  by  shaking 
off  their  real  or  nominal  dependence,  but  until  then  they 
are  in  legal  contemplation  mere  dependencies  of  other 
states. 

IV.  OTHER  ATTRIBUTES  AND  ASPECTS  OF  THE  STATE 

Land  and  people,  government  and  sovereign  power,  are  Elements 
thus  the  indispensable,  eternal  marks  of  the  state.     But  nenceTnd 
states  possess  other  qualities  and  characteristics  in  addition  Continuity 
to  these.     Most  writers,  for  example,  attribute  to  the  state 
the  qualities  of  permanence  and  continuity.^     It  is  not 
meant  by  the  quality  of  permanence,  however,  that  a  partic- 
ular state  once  established  endures  as  such  forever,  for  as  a 
matter  of  fact  history  abounds  in  examples  of  states  whose 
existences  have  been  terminated  through  absorption  by  other 
states  or  through  a  voluntary  merging  of  their  existences 
into  that  of  other  states.     Indeed,  it  would  be  quite  pos- 

the  standpoint  of  international  law  there  are  undoubtedly  states  not  in  all  respects 
independent  (iWJ.,  p.  87);  see  also  Rivier,  o/>.  «/.,  vol.  I,  p.  52;  and  Oppenheini, 
"International  Law,"  vol.  I,  p.  loi,  who  maintains  that  while  a  state  normally 
possesses  "independence  all  round  and  therefore  full  sovereignty,"  yet  there  are 
states  "  which  certainly  do  not  possess  full  sovereignty  and  are  therefore  named  not 
full  sovereign  states."  Such,  he  says,  are  protectorates,  suzerain  communities,  and 
members  of  so-called  federal  states,  which  possess  "supreme  authority"  and 
" independence  with  regard  to  a  part  of  their  tasks,"  though  they  are  not  "full, 
perfect,  and  normal  subjects  of  international  law." 

*  Compare  Von  Mohl,  "  Encyklopadie  der  Staatswissenschaften,"  p.  71;  Blunt- 
schli,  "Allgemeine  Staatslehre,"  p.  26;  Burgess,  "  Political  Science  and  Constitu- 
tional Law,"  vol.  I,  p.  52. 
POL.  SCI.  —  6 


82  ESSENTIAL   ELEMENTS   OF   THE   STATE 

siblc  for  the  existence  of  a  state  to  be  terminated  by  the 
voluntary  withdrawal  of  the  inhabitants  from  its  territory 
or  their  compulsory  removal,  or  by  the  perishing  of  the  en- 
tire population  in  a  common  disaster/  What  is  meant  by 
saying  that  the  state  is  a  continuous  and  permanent  es- 
tablishment —  eine  dauernde  Einrichtung,  as  the  Germans 
describe  it  — -is,  that  since  the  state  is  essential  to  the 
happiness,  if  not  the  very  existence,  of  mankind,  the  world 
must  continue  under  state  organization  for  all  time.  No 
other  organization  or  association  can  fulfill  its  purposes,  and 
whenever  a  particular  form  of  state  disappears,  another  will 
succeed  to  its  place,  and  thus  the  continuity  of  its  life  will 
be  preserved.  It  is  not  to  be  understood,  of  course,  that 
changes  in  the  governmental  organization  or  internal  polity 
of  the  state  necessarily  destroy  or  interrupt  its  continuity. 
Effect  of  The  governmental  organization  of  the  state,  in  fact,  is  not 
hfoovern-  infrequently  changed  by  revolution,  or  through  legal 
mental  Or-  alteration,  yet  the  corporate  existence  of  the  state  itself 
ganiza  ion  ^^j^^j^^j^j^g  Unimpaired  and  unaffected.  Governments  are 
not  immortal;  they  are  merely  the  agents  or  instrumentali- 
ties through  which  the  state  for  the  time  being  acts,  and 
they  may  be  changed  or  superseded  at  the  will  of  the  sover- 
eign. Monarchies  may  be  transformed  into  repubHcs  and 
republics  into  monarchies,  the  rank  and  titles  of  rulers 
may  be  changed,  absolute  principles  may  be  superseded 
by  constitutional  principles,  without  legal  effect  upon  the 
identity  of  the  state,  its  corporate  personality,  its  rights  or 
its  obligations.  Only  when  the  internal  changes  in  its 
structure  result  in  prolonged  anarchy  is  the  existence  of 
the  state  itself  involved.  France,  for  example,  set  aside 
its  dynasty,  transformed  its  government  from  a  monarchy 
to  a  republic,  then  to  an  empire,  again  to  a  monarchy, 
then  became  a  republic  again,  again  an  empire,  and  is 
now  a  republic  for  the  third  time,  but  the  continuity 
of  the  state  as  such   has    remained   unchanged    through 

'  Cf.  Oppenheim,  "  International  Law,"  vol.  I,  p.  ii8. 


OTHER   ATTRIBUTES   AND    ASPECTS   OF   THE   STATE       83 


all  the  political  transformations  through  which  it  has 
passed/ 

The  state  manifests  itself  also  under  other  forms  and 
reveals  other  quahties  and  attributes,  depending  upon  the 
multifarious  points  of  view  from  which  it  is  considered. 
Viewed  objectively,  it  reveals  itself  to  us  as  a  concrete  work- 
ing organization,  not  a  mere  mental  abstraction  or  collec- 
tivity of  individual  will  relations.  Considered  subjectively, 
it  appears  to  us,  as  the  etymological  derivation  of  the  word 
implies,  as  a  condition  or  status  rather  than  a  dynamic 
organization. 

Looked  at  from  still  another  viewpoint,  the  state  is  pri- 
marily a  social  phenomenon;  an  association  for  the  reali- 
zation of  the  common  social  interests  of  mankind.  Some 
writers,  looking  at  it  from  another  viewpoint,  lay  great 
stress  on  the  state  as  a  legal  concept,  — ein  Rechtshegriff,  as 
the  Germans  say.  They  dwell  upon  its  character  as  a  j  uristic 
person,  a  corporation  of  public  law,  the  bearer  of  public 
rights  and  obligations.  The  juristic  personification  of  the 
state  has  always  been  a  favorite  theme  of  a  certain  class  of 
German  and  French  writers.  Some  of  them,  following  the 
theories  of  the  Roman  law,  have  attributed  to  it  only  a 
limited  juristic  personality,  while  others  have  emphasized 
its  character  as  a  real  juristic  person  in  the  strictest  sense 
of  the  word.^ 

Continental    European    writers    generally  dwell     upon 


Other 
Aspects 
in  which 
the  State 
may  be 
viewed 


The 
State 
as  a 
Juristic 
Concept 


*  On  the  continuity  of  the  state  see  Oppenheim,  "International  Law,"  vol.  I, 
p.  115  flf. ;  Moore,  "Digest  of  International  Law,"  vol.  I,  p.  249;  Pradier-Foder^, 
"Traite  de  Droit  int.  public,"  vol.  I,  p.  155;  Hall,  "International  Law,"  3d  ed., 
p.  22  ;  Rivier,  "  Principes  du  Droit  des  Gens, "  vol.  I,  p.  62. 

^  See  Gierke's  "Das  Deutsche  Genossenschaftsrecht."  Gierke  conceives  the 
state  to  be  a  " Genossenschaft  des  offentlichen  Rechts"  rather  than  a  " Korperschafi 
des  offentlichen  Rechts."  For  this  he  is  criticised  by  a  recent  writer  who  declares 
"  Der  Staat  ist  keine  Genossenschaft  sondern  eine  Korperschafi  des  offentlichen 
Rechts;  derselhe  ist  den  fhysischen  Personen  nicht  bloss  im  Beziig  aiif  Erwcrb  und 
Verlust  von  Rechten,  sondern  auch  im  Beziig  auf  Entstehung  und  Untergang  gleich- 
gestellt."  Werner  Rosenberg,  "IJber  den  Staatsbegriff,"  in  the  "Zeitschrift  fiir 
die  gesamte  Staatswissenschaft,"  1909,  Erstes  Heft,  pp.  49-51. 


84  ESSENTIAL   ELEMENTS   OF   THE   STATE 

The  the   distinction    between    the   state   as   a   public  govern 

^i^lu^  mental  power  —  a  Korperschaft  des  offentlichen  Rechts  — 
which  legislates,  commands,  and  exacts  obedience,  on  the 
one  hand,  and  its  character  as  a  fiscal  personality  or  ordinary 
corporation  of  private  law,  on  the  other  hand.  As  jiscus 
the  state  is  a  concept  of  private  law,  capable  of  entering  into 
all  or  almost  all  the  relations  of  private  law.  As  such  it 
enters  into  contractual  engagements  very  much  as  a  private 
individual  or  corporation  does;  acquires,  owns,  and  ad- 
ministers property;  employs  agents;  brings  suits  in  the 
courts  and  sometimes  allows  itself  to  be  made  a  party  to 
suits  at  the  instance  of  private  persons.  Thus  the 
state  possesses  both  a  public  and  a  private  character, 
exercises  imperium  and  dominium,  governs  and  trans- 
acts business,  etc.^  On  the  continent  of  Europe  the  dis- 
tinction between  the  state  as  a  public  power  and  a.s  Jiscus 
possesses  great  practical  importance  owing  to  the  rule 
generally  prevailing  there  that  the  government  is  respon- 
sible to  the  individual  in  damages  for  violations  of  contracts 
to  which  it  is  a  party  as  well  as  for  torts  committed  by  its 
officers  and  agents.  This  liability  of  the  state  as  Jiscus  is 
enforced  by  suits  brought  by  the  injured  individual  either 
in  the  ordinary  judicial  courts,  as  in  Germany,  or  in 
special  administrative  tribunals,  as  in  France.  In  Eng- 
land and  the  United  States,  where  the  idea  of  the  state 
as  a  corporation  has  had  less  development  and  where  the 
legal  responsibility  of  the  state  to  the  individual  through 
suits  for  damages  is  hardly  recognized  by  the  public  law  of 
either  country,  the  distinction  between  the  state  as  a  public 
corporation  and  as  Jiscus  is  of  less  importance. 

'See  Jelllnek,  "Recht  des  mod.  Staates,"  bk.  Ill,  ch.  12;  Hatschek,  "Die 
rechtliche  Stellung des  Fiscusim  burgerlichen  Gesetzbuch";  Duguit,  "Droit  consti- 
tutionnel,"  pp.  120-121 ;  Hauriou,  "  Droit  administratif  "  (5th  ed.),  p.  372 ;  Michoud, 
"Theorie  de  la  Personnalite  morale";  and  "La  Responsabilite  de  I'Etat,"  in  the 
"Revue  de  Droit  public,"  1895,  vol.  IL  p.  2  ff. ;  Bornhak,  "  Preussisches  Staats- 
recht,"  vol.  II,  p.  47  ff. ;  Du  Crocq,  "Cours  de  Droit  administratif,"  sees.  1055 
et  seq.;  Goodnow,  "  Administrative  Law,"  vol.  II,  p.  149  et  seq.  and  161  et  seq. 


OTHER    ATTRIBUTES    AND    ASPECTS    OF    THE    STATE       85 

Finally,  some  writers,  especially  Germans,  distinguish  The  idea 
between  the  concept  of  the  state  (Staatsbegriff)  and  the  idea  thtfcon- 
of  the  state  {Staatsidee) .  The  concept  of  the  state,  says  ceptofthe 
Bluntschli,  presents  us  a  picture  of  actual  states  from  the 
standpoint  of  their  nature  and  essential  characteristics; 
the  idea  of  the  state  is  that  of  the  state  in  the  splendor  of 
imaginary  perfection,  the  state  not  yet  realized  in  fact, 
but  toward  which  mankind  should  strive/  The  distinction 
is  not  entirely  fanciful,  though  the  accuracy  of  the  termi- 
nology may  be  open  to  question.  What  is  intended,  is  to 
distinguish  between  a  concrete  state  as  it  actually  is  or  as 
it  has  existed  in  history  and  the  state  in  the  abstract, 
no  particular  state  but  the  state  in  general.  The  one  is  the 
result  of  concrete  thinking,  of  inductive  logic;  the  other  of 
philosophical  speculation  and  abstract  reasoning.^  "The 
idea  of  the  state,"  says  Burgess,  "is  the  state  perfect  and 
complete ;  the  concept  of  the  state  is  the  state  developing  and 
approaching  perfection.  From  the  standpoint  of  the  idea 
the  state  is  the  world  viewed  as  an  organized  unit.  From 
the  standpoint  of  the  concept  the  state  is  a  particular  por- 
tion of  mankind  politically  organized.  The  former  is  the 
real  state  of  the  perfect  future;  the  latter  the  real  state  of 
the  past  and  the  present  and  the  imperfect  future.  With 
the  progress  of  mankind  and  the  development  of  the 
world  the  two  will  tend  to  become  identical."^ 

*  "Allgemeine  Staatslehre,"  p.  34. 

*  Compare  Willoughby,  "  Nature  of  the  State,"  p.  14. 

*  "  Political  Science  and  Constitutional  Law,"  vol.  I,  p.  49. 


CHAPTER   IV 

THE   ORIGIN   OF  THE  STATE 

Suggested  Readings:  Bluntschli,  "AUgemeine  Staatslehre,"  bk. 
IV,  chs.  7-9;  BoRNHAK,  "AUgemeine  Staatslehre," pp.  15-19;  Brown- 
son,  "  The  American  Republic,"  chs.  3-6;  Burgess,  "PoHtical  Science 
and  Constitutional  Law,"  vol.  I,  bk.  II,  ch.  2 ;  Dealey,  "  The  Develop- 
ment of  the  State,"  ch.  2;  Fouillee,  "La  Science  sociale  contempo- 
raine,"  chs.  i  and  2;  Held,  "  System  des  Verfassungsrecht,"  ch.  11; 
HoBBES,  "Leviathan"  (Molesworth's  ed.),chs.  13, 14, 17, 18;  Hume, 
Essay, "  Of  the  Original  Contract,"  "  Essays,"  vol.  I ;  Jellinek,  "  Recht 
des  modernen  Staates,"  bk.  II,  ch.  7;  Jenks,  "History  of  Politics," 
chs.  2  and  3;  Leacock,  "Elements  of  Political  Science,"  chs.  2  and  3; 
Lilly,  "First  Principles  of  Politics,"  ch.  2;  Locke,  "Two  Treatises  of 
Government"  (ed.  by  Morley),  bk.  II,  chs.  2,  3,  4,  7,  8  ;  Lowell, 
*'  Essays  on  Government,"  Essay  No.  5;  Maine,  "  Early  History  of 
Institutions,"  ch.  3;  also  his  "  Early  Law  and  Custom,"  ch.  7;  and  his 
"Village  Communities,"  ch.  i;  McKechnie,  "  The  State  and  the 
Individual,"  pt.  I,  ch.  2;  McLennan,  "The  Patriarchal  Theory," 
ch.  i;  MuLFORD,  "The  Nation,"  ch.  4;  Pollock,  "History  of  the 
Science  of  Politics,"  chs.  2  and  3;  Posado,  "Tratado  de  Derecho  Polit- 
ico," bk.  Ill;  Rehm,  "  AUgemeine  Staatslehre,"  sees.  66-69;  Ritchie, 
"Darwin  and  Hegel,"  ch.  7;  also  his  "Natural  Rights,"  ch.  3;  Rous- 
seau, "Le  Contrat  social,"  bk.  I,  chs.  6,  8;  Seeley,  "Introduction 
to  Political  Science,"  lect.  Ill;  Treitschke,  "  Politik,"  vol.  I,  sec.  4; 
Willoughby,  "Nature  of  the  State,"  chs.  3  and  4;  Woolsey,  "Po- 
litical Science,"  vol.  I,  sec.  62. 


Begin- 
nings of 
State  Life 
unre- 
corded 


I.     PRELIMINARY   OBSERVATIONS 

Inquiry  into  the  circumstances  surrounding  the  origin 
of  the  state  belongs  largely  to  the  realm  of  theory  and 
speculation.  History  records  the  principal  facts  regarding 
the  establishment  of  particular  commonwealths  by  men 
already  accustomed  to  political  life;  it  tells  us  how  and 
under  what  circumstances  state  organization  has  spread 
to  new  lands  hitherto  unoccupied  or  inhabited  by  people 
politically  unorganized,  and  how  new  forms  of  state  or- 
ganization  have  superseded   other   forms.     But   the  cir- 

86 


THE   THEORY   OF   DIVINE   ORIGIN  87 

cumstances  and  conditions  under  which  primitive  men 
first  saw  the  light  of  political  consciousness  and  came 
to  associate  themselves  together  under  some  form  of 
political  organization  are  facts  veiled  largely,  if  not  wholly, 
in  the  mists  of  obscurity.  Authentic  history  throws  little 
light  on  the  subject,  and  we  must  look  for  the  most  part  to 
the  new  sciences  of  sociology,  ethnology,  and  anthropology 
to  help  us  in  fathoming  the  mystery. 

Aristotle  tells  us  that  the  state  was  the  highest  and  last 
of  the  associations  formed  by  man,  as  it  was  the  only  self- 
sufficing  one  —  that  is,  the  only  one  capable  of  satisfying 
all  the  needs  of  man.  We  are  therefore  probably  safe  in 
saying  that  it  has  existed  in  some  form,  rudimentary  or 
otherwise,  wherever  civilized  men  have  lived  together  in 
any  considerable  numbers.  But  our  knowledge  concerning 
the  nature  of  this  early  authority  and  of  the  procedure  by 
whit:h  it  was  established  rests  largely  on  inference  and  gen- 
eral! <jation  rather  than  upon  historical  proof. 

II.     THE   THEORY   OF   DIVINE   ORIGIN 

Various  theories  concerning  the  original  institution  of 
political  authority  have  been  advanced  by  historical  and 
political  writers,  but  as  yet  it  can  hardly  be  said  that  there 
is  any  common  agreement  among  them  as  to  the  true 
origin.^ 

The  oldest  of  these  theories,  as  Jellinek  remarks,  is  that  Meaning 
which   attributes   the   establishment   of   the   state,    medi-  ^iyine 
ately  or  immediately,  to  God  or  some  superhuman  power.^  Theory 

*  It  is  not  always  clear  from  the  discussions  of  the  theories  of  state  origin 
whether,  in  a  given  case,  an  attempt  is  being  made  to  account  for  the  origin  of  the 
state  as  a  historical  fact,  or  to  explain  its  justification;  that  is,  the  right  of  the 
state  to  be.  The  two  questions  are,  of  course,  separate  and  distinct,  but  they  were 
so  often  confused  by  the  early  writers  that  it  is  frequently  impossible  to  tell  which 
one  they  were  seeking  to  explain. 

'  "Recht  des  mod.  Staates,"  p.  180.  See  also  Bluntschli,  "Allgemeine  Staats- 
lehre,"  bk.  IV,  ch.  7;  Duguit,  "Droit  constitutionnel,"  pp.  21-25;  Willoughby, 
"  Nature  of  the  State,"  pp.  42-53 ;  Woolsey,  "  Political  Science,"  vol.  I,  pp.  196-198 
and  497-500. 


88  THE    ORIGIN    OF   THE    STATE 

The  theory  assumes  that  the  will  of  God  was  made  known 
by  revelation  mediately  or  immediately  to  certain  persons 
who  were  his  earthly  vicegerents,  and  by  them  communi- 
cated to  the  people  by  whom  obedience  was  a  religious  as 
well  as  a  civil  duty.  The  divine  theory,  as  an  explanation 
of  both  the  historical  origin  of  the  state  and  its  justifica- 
tion, was  widely  defended  in  earlier  times,  when  many  of 
the  chief  political  writers  were  at  the  same  time  churchmen 
and  theologians.  Biblical  support  for  it  is  found  in  such 
passages  as  Paul's  admonition  to  the  Romans:  "Let  every 
soul  be  in  subjection  to  the  higher  powers;  for  there  is  no 
power  but  of  God;  and  the  powers  that  be  are  ordained  of 
God."  ' 
Early  During  the  Middle  Ages  this  doctrine  became  a  sort  of 

of'the'^  Christian  dogma  and  was  at  the  bottom  of  the  teaching 
Theory  that  rulers  of  states  were  the  anointed  representatives  of 
God.  The  celebrated  Augsburg  Confession  of  1530  placed 
the  stamp  of  approval  on  it  when  it  declared  that  "all 
authority,  government,  law  and  order  in  the  world  have 
been  created  and  established  by  God  Himself."  The  idea 
that  in  some  form  the  state  is  an  institution  of  God  and 
that  rulers  govern  by  divine  right,  that  there  is  "a  divinity 
that  doth  hedge  a  king,"  lasted  until  the  end  of  the  eight- 
eenth century  and  in  some  countries  even  later.  The  theory 
was  especially  strong  in  France,  where  the  claim  that  the 
"king  of  France  holds  his  kingdom  and  his  sword  only 
from  God"  was  frequently  asserted  in  the  controversies 
between  the  French  kings  and  the  Papacy.^ 
Modern  We  find  the  same  claim  put  forth  in  the  famous  treaty  of 

o/tS'°°'  the  Holy  Alliance  concluded  in  181 5  between  the  sovereigns 
Theory  of  Austria,  Russia,  and  Prussia,  where  it  was  solemnly  as- 
serted by  their  Majesties  that  they  looked  upon  themselves 
as  being  delegated  by  Providence  to  govern  their  peoples, 
that  the  Christian  nations  of  which  they  and  their  subjects 
were  a  part  acknowledged  no  sovereign  but  God,  to  Whom 

*  Romans  xiii,  i.  '  Duguit,  "  Droit  constitutionnel,"  p.  23. 


THE   THEORY   OF   DIVINE   ORIGIN  89 

belonged  all  power,  and  that  their  duties  as  rulers  were 
pointed  out  to  them  by  the  same  divine  authority/  The 
idea  in  less  extreme  form  is  still  maintained  by  some  of  the 
rulers  of  Europe  to-day,  notably  by  the  present  German 
emperor,  who  has  frequently  asserted  the  claim  to  rule  by 
divine  right. ^  The  belief  of  the  masses  of  the  common 
people  in  the  divinity  of  kings  still  persists  in  parts  of 
eastern  Europe,  but  as  a  doctrine  of  political  philosophy 
it  received  its  death  blow  at  the  hands  of  Grotius,  Hobbes, 
and  Locke. ^  The  doctrine  of  divine  right  has  had  its 
advocates  among  political  writers,  no  less  than  among 
kings.  Bossuet,  a  noted  writer  of  the  seventeenth  century, 
in  his  "Politics  as  derived  from  the  Scriptures,"-  boldly 
asserted  that  God  established  kings  as  His  ministers 
through  whom  He  ruled  over  His  people,  like  a  father  over 
his  children,  and  who  were  accountable  only  to  Him  for 
their  acts.  The  Protestant  monarchomachs  of  the  sixteenth 
century,  the  Spanish  Jesuits,  and  the  noted  Filmer  in  his 
"Patriarcha,"  written  in  the  middle  of  the  seventeenth 
century,  taught  essentially  the  same  doctrine.^ 

James  I  of  England,  before  his  accession  to  the  throne,  Views  of 
in  a  short  treatise  entitled  "The  True  Law  of  a  Free  Mon-  eS^J^* 
archy,"  laid  down  the  dogma  that  kings  rule  by  divine  right 
and  that  subjects  have  no  recourse  against  them,  and  he 
supported  his  claims  by  arguments  drawn  both  from  the 
Scriptures  and  the  law  of  nature.  Upon  these  high  author- 
ities he  affirmed  the  doctrine  of  the  sacrosanctness  of  the 
royal  office  and  declared  that  as  it  is  blasphemy  to  dispute 

'  Article  II. 

'  Cf.  Duguit,  "Droit  constitutionnel,"  p.  23,  and  Schierbrand,  "Germany," 
pp.  17,  21. 

'  Willoughby,  "Nature  of  the  State,"  p.  50.  P"or  a  somewhat  extravagant  de- 
fense of  the  idea  that  there  is  a  certain  divinity  about  kings  vi'hich  serves  to  secure 
the  loyalty  of  the  masses  to  the  government,  see  Bagehot's  "The  English  Constitu- 
tion," ch.  3,  especially  pp.  112,  127,  146. 

*  Jellinek,  op.  cit.,  p.  183 ;  Dunning,  "  Political  Theories  from  Luther  to  Montes- 
quieu," p.  328. 


90 


THE   ORIGIN   OF   THE   STATE 


what  God  can  do,  so  it  is  presumption  and  high  contempt 
to  dispute  what  a  king  can  do.* 

Of  the  merits  of  the  theocratic  theory  as  an  account  of 
the  historical  origin  of  the  state,  there  is  now  Httle  differ- 
ence of  opinion  among  poHtical  philosophers.  The  doc- 
trine that  the  state  was  established  by  an  ordinance  of  God, 
that  its  magistrates  are  divinely  appointed,  that  they 
are  accountable  to  no  authority  but  God,  the  ruler  and 
lawgiver  of  the  state,  now  has  few  supporters.^  The  fact  is, 
the  state  is  no  more  the  direct  and  immediate  creation 
of  a  supernatural  power  than  any  of  the  multifarious  asso- 
ciations into  which  mankind  has  entered.  The  authority 
which  the  state  exercises,  whatever  its  origin,  must  be 
exercised  through  human  agencies  and  must  be  humanly 
interpreted,  that  is,  in  the  last  analysis,  it  is  only  what  the 
state  chooses  to  make  it. 

We  may  accordingly  dismiss  the  doctrine  of  divine  right 
with  the  statement  that  it  never  was  anything  more  than  an 
invention  of  men,  designed  to  bolster  up  the  claims  of  cer- 
tain rulers  to  hold  their  crowns  independently  of  the  will  of 
the  people  and  to  govern  absolutely  and  without  accounta- 
bility to  any  authority  except  such  as  they  might  choose 
to  render  to  God.  If  the  theory  meant  simply  that  the 
Creator  implanted  in  the  breast  of  man  the  instinct  for 
order  and  the  impulse  which  manifests  itself  in  political 
organization,  we  could  accept  it.^     Or,   if  it  meant  that 


'  Dunning,  p.  215.  Compare  on  this  point  Mulford  ("  The  Nation,"  ch.  4),  who 
says:  "The  nation  has  a  divine  foundation  and  has  for  its  end  the  fulfillment  of  the 
divine  end  in  history.  .  .  .  There  is  no  human  ground  on  which  it  can  rest.  They 
who  are  intrusted  with  it  hold  it  as  representatives  of  the  nation  and  as  the  ministers 
of  the  divine  purpose  in  the  nation.  The  President  and  the  Congress,  as  the  Crown 
and  the  Parliament,  rule  by  the  grace  of  God  "  (p.  56).  For  a  similar  view  see  Brown- 
son's  "American  Republic,"  p.  126. 

*  Bluntschli,  op.  cit.,  bk.  IV,  ch.  7 ;  Duguit,  op.  at.,  p.  25  ;  Jellinek,  op.  cit.,  p.  185. 

'  Compare  Burgess,  "  Political  Science  and  Constitutional  Law,"  vol.  I,  pp.  60-61 ; 
also  Hume,  "Of  the  Original  Contract,"  who  says:  "As  it  is  impossible  for  the 
human  race  to  subsist  at  least  in  any  comfortable  or  secure  state,  without  the  pro- 
tection of  government,  this  institution  must  certainly  have  been  intended  by  that 


THE   THEORY   OF   DIVINE   ORIGIN  91 

magistrates  should  rule  in  accordance  with  the  precepts 
and  teachings  of  the  Christian  religion,  and  that  they  owe 
a  moral  accountability  to  God  for  the  manner  in  which  they 
exercise  their  power,  few  would  dissent.  Or,  if  it  meant 
that  the  life  of  the  state  began  under  religious  influences  and 
that  in  its  earlier  stages  of  development  it  had  a  distinct 
theocratic  cast,  we  should  be  bound  to  accept  the  theory. 

The  idea  that  rulers  are  directed  and  supported  by  a  influence 
supernatural  power  is  very  strong  among  primitive  peoples,   gjon^  '" 
They  are  accustomed  to  call  religion  to  their  aid  and  to  a^o"g 

1  1-    •  •  r  1      •      •  ^11-      Primitive 

seek  a  religious  sanction  for  their  important  acts.  Obedi-  Peoples 
ence  to  the  state  is  inculcated  by  them  as  a  religious  duty, 
and  religious  worship  is  usually  supported  by  their  govern- 
ments. Thus  Rome  had  its  national  religion  and  its  own 
national  gods,  and  the  whole  of  the  jus  sacrum  was  regarded 
as  a  part  of  the  Roman  public  law.^  In  the  early  stages  of 
the  life  of  the  state  the  ministers  of  religion  are  the  domi- 
nating class,  the  lawgivers,  the  statesmen,  and  the  judges. 
The  names  of  Numa  Pompilius  in  Rome,  Lanfranc,  Anselm, 
and  Wolsey  in  England,  Mather,  Hooker,  Cotton,  Edwards, 
and  Davenport  in  North  America,  belong  almost  as  much 
to  political  as  to  ecclesiastical  history.^  The  pillars  of  the 
early  state,  says  Burgess,  are  usually  churchmen;  the 
priestly  class  are  exalted  above  the  rest  of  society,  and  the 
unfaithful  are  denied  membership  in  the  state. 

beneficent  Being  who  means  the  Good  of  all  his  creatures.  But  he  did  not  estab- 
lish government  by  any  particular  or  marvelous  interposition  but  by  his  conceded 
and  universal  efficiency.  A  sovereign  cannot,  properly  speaking,  be  called  his 
vicegerent  in  any  other  sense  than  that  every  power  or  force  being  derived  from 
him  may  be  said  to  act  by  his  commission." 

'  Cf.  Schuize,  "Deutsches  Staatsrecht,"  vol.  I,  p.  661. 

'  On  the  political  influence  of  the  early  New  England  clergy,  see  Osgood,  "  History 
of  the  American  Colonies  in  the  Eighteenth  Century,"  vol.  I,  p.  218.  They  were, 
says  Osgood,  the  chief  expounders  of  the  public  law  of  the  commonwealth,  and  their 
utterances  on  questions  of  public  policy  are  among  the  most  valuable  and  authori- 
tative that  we  have.  Their  advice  was  frequently  sought,  they  delivered  addresses 
before  the  legislature,  they  cooperated  in  forming  the  New  England  Confederacy, 
and  no  affair  of  government  was  indifferent  to  them.  With  the  magistrates  they 
constituted  for  half  a  century  the  governing  class  of  Massachusetts. 


92 


THE    ORIGIN   OF   THE    STATE 


Social 

Compact 

Theory 


The 

State  of 
Nature 


Early 
Expound- 
ers of  the 
Theory 


III.     THE   COMPACT   THEORY 

A  theory  of  state  origins  which  has  profoundly  influenced 
the  poHtical  thought  of  Europe  and  America  for  two  cen- 
turies is  that  which  is  popularly  described  as  the  "social 
compact"  or  the  "social  contract."  ^  This  theory  ascribes 
the  institution  of  political  authority  to  contract  or  conven- 
tion, that  is,  to  the  deliberate  and  voluntary  agreement  of 
the  members  of  the  community  who,  through  the  instru- 
mentality of  a  covenant,  organize  themselves  into  a  body 
politic.  This  explanation  of  how  the  state  originated,  as 
well  as  of  its  right  to  be,  has  had  many  advocates  since  the 
seventeenth  century  and  has  furnished  the  pretext,  if  not 
the  justification,  for  numerous  revolutions  and  the  institu- 
tion of  new  governments  in  the  place  of  old  ones.^  Most 
of  its  advocates  assume,  to  start  with,  the  existence  of  a 
pre-social  or  a  pre-civil  condition  of  mankind,  antecedent 
to  the  establishment  of  the  state,  in  which  men  were  unre- 
strained by  the  prescriptions  of  positive  human  law,  but 
were  subject  only  to  those  of  the  moral  law,  the  law  of 
nature  or  the  instincts  of  reason.  This  hypothetical  condi- 
tion or  status,  says  the  philosopher  Thomas  Hill  Green, 
is  "a  state  in  which  every  individual  is  free  to  do  as  he 
likes,  and  from  which  individuals  escape  by  contracting 
themselves  out."  ^  This  condition  of  society  is  described 
by  the  writers  on  the  compact  theory  as  the  state  of  nature, 
the  status  naturalis. 

The  first  modern  writer  to  expound  at  length  the  compact 
theory  of  the  origin  of  civil  society  was  a  clergyman  of  the 

'  Some  writers  employ  the  term  "compact,"  others  prefer  "contract,"  while 
still  others  use  both  terms  without  discrimination.  Little,  if  anything,  is  gained  by 
insisting  on  a  distinction  between  the  two  terms.  Compare  Ritchie,  "Darwin  and 
Hegel,"  p.  210;  and  Clark,  "Practical  Jurisprudence,"  p.  144. 

'  Cf.  Bluntschli,  "Allgemeine  Staatslehre,"  bk.  IV,  ch.  9. 

'"Political  Obligations,"  p.  2)2>-  C)n  the  compact  theory  see  Jellinek,  "Recht 
des  mod.  Staates,"  pp.  194-210;  Esmein,  "Droit  constitutionnel,"  p.  171  ff. ; 
Lowell,  "Essays  on  Government,"  ch.  4:  Gierke,  " Genossenschaftsrecht,"  p.  88; 
Story,  "  Commentaries,"  vol.  I,  pp.  225-227. 


THE    COMPACT   THEORY  93 

Church  of  England,  Richard  Hooker,  in  a  treatise  entitled 
"Ecclesiastical  PoHty, "  published  in  1594;  and,  singularly 
enough,  the  theory  was  invented,  or  at  least  employed  by 
him,  to  defend  the  Established  Church  against  the  attacks 
of  its  enemies/  Political  conditions  in  England  at  that 
time  were  such  as  to  place  the  popular  mind  in  a  position 
of  receptivity  for  the  acceptance  of  a  theory  which  condi- 
tioned royal  authority  only  upon  the  consent  of  the  people 
and  which  considered  the  relation  between  king  and  people 
as  contractual  in  character.  In  the  next  century  Grotius, 
in  his  epoch-making  treatise  on  the  "Law  of  War  and 
of  Peace"  (1625),  Milton,  in  his  "Tenure  of  Kings  and 
Magistrates,"  Pufendorf,  in  his  "Law  of  Nature  and  of 
Nations,"  Spinoza,  in  his  "Tractatus  Politicus,"  and  more 
especially  Thomas  Hobbes,  in  his  "Leviathan,"  published 
in  1 65 1,  —  all  advocated  the  contract  theory,  the  latter  elab- 
orating and  defending  it  at  great  length  and  with  distin- 
guished ability. 
A  In  the  same  century  the  doctrilne  of  contract  reached  Its 
full  fruition  and  found  its  most  powerful  advocate  in  John 
Locke,  whose  "Two  Treatises  of  Government"  was  pub- 
lished in  1690,  and  in  the  next  century  by  J.  J.  Rousseau, 
who,  in  his  "  Le  Contrat  social,"  gave  to  the  theory  a 
popularity  that  it  had  never  before  attained.  In  the  po- 
litical thought  of  America  during  the  revolutionary  era  the 
doctrines  of  the  "law  of  nature,"  the  "state  of  nature,"  and 
the  "compact"  theory  of  society  occupied  a  dominant 
place.  With  the  statesmen  of  the  Revolution  the  idea  that 
contract  was  the  legitimate  basis  of  authority,  that  govern- 
ment rests  on  consent,  and  that  no  government  is  entitled 
to  the  allegiance  and  obedience  of  its  subjects  unless  they 
have  agreed  to  its  establishment,  was  almost  a  part  of  the 
religious  belief  of  the  people.^ 

'  Hooker's  philosophy  later  became  the  basis  of  Sidney's  and  Locke's  doctrines 
in  their  attack  on  Filmer.     Cf.  Jellinek,  op.  cit.,  p.  198. 

*  See  Merriam,  "American  Political  Theories,"  p.  49.    The  compact  view  is  thus 


fl 


94 


THE    ORIGIN    OF   THE   STATE 


Distinc-  Before  proceeding  farther  with   a  consideration  of  the 

tween Vhe  ^octrine  of  the  social  compact  it  will  be  well  to  distinguish 
Social  and  between  the  two  applications  which  have  been  given  to  the 
caicom-  theory.  In  the  first  place,  the  "compact"  theory  maybe, 
P^'^*  and  has  been,  employed  to  describe  an  association  or  agree- 

ment among  the  members  of  a  community,  still  in  a  state 
of  nature,  by  which  civil  authority  is  established.  In  the 
second  place,  it  may  refer  to  an  agreement  or  a  relation 
between  the  people  of  a  community  already  politically 
organized,  on  the  one  hand,  and  a  particular  magistrate  or 
ruler,  on  the  other.  In  the  first  case,  the  parties  to  the  com- 
pact are  the  individuals  of  the  community,  each  with  one 
another  and  with  all;  in  the  second  place,  the  parties  are 
the  whole  society  in  its  corporate  capacity,  on  the  one  hand, 
and  an  agent  or  ruler,  on  the  other.  By  some  writers  the 
former  is  described  as  the  social  compact,  the  latter  as  the 
political  or  governmental  compact.^  The  one  represents  the 
act  by  which  men  in  a  state  of  nature  establish  a  political 
or  civil  society;  the  other  the  act  by  which  a  political  society 
already  established  institutes  a  particular  government.^ 
One  represents  a  theory  of  the  origin  of  the  state,  the  other 
a  theory  of  the  institution  of  a  particular  government. 
The  first  transaction,   therefore,   necessarily  precedes   the 

stated  in  the  preamble  to  the  constitution  of  Massachusetts  (1780),  "The  body  politic 
is  formed  by  a  voluntary  association  of  individuals ;  it  is  a  social  compact  by  which  the 
vifhole  people  covenants  with  each  citizen  and  each  citizen  vnth  the  whole  people,  that 
all  shall  be  governed  by  certain  laws  for  the  common  good."  See  also  the  constitu- 
tion of  New  Hampshire  (1792)  for  a  similar  declaration. 

'  Ritchie,  "Darwin   and  Hegel,"  p.   210;   Willoughby,  "Nature  of   the  State," 

P-  55- 

^  Compare  Locke  ("Two  Treatises  of  Government,"  ch.ig,  sec.  211,  of  Morley's 
edition),  who  recognized  the  distinction  between  the  "  social  contract "  and  the  "  gov- 
ernmental contract."  Rousseau,  however,  maintained  that  there  was  but  one  con- 
tract in  the  process  by  which  the  state  of  nature  was  transformed  into  the  civil  state, 
namely,  the  original  association,  the  social  contract.  Only  society,  not  government, 
he  asserted,  was  instituted  by  contract.  Government  was  established  by  two  acts  of 
authority,  the  creation  of  the  office  and  the  appointment  of  the  magistrates. 
"Contrat  social,"  bk.  Ill,  ch.  16.  See  also  Green,  "Political  Obligations,"  pp. 
80-92. 


THE    COMPACT   THEORY 


95 


latter  in  point  of  time  and  is  an  essential  preliminary  con- 
dition to  the  establishment  of  the  latter.  Thus  the  people 
of  a  given  community  may  organize  themselves  by  covenant 
into  a  political  society  without  making  a  compact  with  a 
particular  ruler  or  governing  body,  but  they  cannot  con- 
tract with  a  ruler  until  they  have  become  a  political  society 
and  hence  have  acquired  that  corporate  capacity  without 
which  contracts  cannot  be  entered  into  by  bodies  of  men. 

The  idea  that  the  authority  of  rulers  rests  on  compact  History 
or  contract  between  them  and  the  people  is  as  old  as  Plato,  °*^J^® 
and  its  supporters  have  been  able  to  cite  in  support  of  the  Theory 
theory  numerous  historical  examples  from  the  Old  Testa- 
ment. Such,  for  instance,  were  the  covenants  between  the 
elders  of  Israel  and  David  by  which  the  latter  was  anointed 
king,*  between  God  and  His  people  relative  to  the  installa- 
tion of  Saul  as  king,^  between  Josiah  and  the  people  on  the 
one  hand  and  the  Lord  on  the  other,^  the  covenant  which 
God  made  with  Noah  after  the  flood, ^  and  many  others. 
The  principles  of  the  Roman  law  of  contract  also  gave 
support  to  the  idea,  and  the  great  Roman  jurist  Ulpian 
seems  to  have  considered  the  relation  between  the  Roman 
emperor  and  the  people  as  being  in  the  nature  of  a  compact.^ 
Throughout  the  Middle  Ages  and  the  early  modern  period 
the  theory  of  the  contractual  basis  of  political  authority 
exerted  great  influence  upon  the  political  thought  of  the 
time,  but  it  should  be  remembered  that  it  was  not  the  the- 
ory of  the  origin  of  civil  society — not  the  original  social 
compact  —  but  the  theory  of  the  relation  between  the  people 
and  their  magistrates,  between  the  state  and  its  governing 
authority.^     In  this  form  it  had  such  advocates  as  Hooker, 

'  2  Samuel  v,  3.  ^  i  Samuel  x.  ^  2  Kings  xxiii,  1-3. 

^  See  Jellinek,  op.  cit.,  p.  196  ff. ;  also  Locke,  "  Civil  Government,"  bk.  11,  ch.  18. 

^  On  this  point  Sir  Henry  Maine  remarks  that  "  long  before  the  theory  of  the  social 
compact  had  clothed  itself  in  definite  shape  the  phraseology  of  the  Roman  contract 
law  had  been  largely  drawn  upon  to  describe  that  reciprocity  of  rights  and  duties 
which  men  had  always  conceived  as  existing  between  sovereigns  and  subjects." 
"Ancient  Law,"  3d  ed.,  p.  345.  «  Jellinek,  op.  cit.,  p.  197. 


96  THE    ORIGIN    OF    THE    STATE 

Milton,  Buchanan,  Johannes  Althusius,  Languet,  Filmer, 
Grotius,  Pufendorf,  and  others.  Instances  of  actual  con- 
tracts between  people  and  kings  are,  however,  few,  and  those 
which  have  been  relied  upon  are  hardly  such  as  to  establish 
the  claims  of  the  theory  as  a  historical  fact/ 
An  Expia-  Nevertheless  it  is  sometimes  maintained  that  if  the  the- 
the  Reia-  ^^V  cannot  be  successfully  defended  as  descriptive  of  an  ac- 
tionship  tual  historical  transaction,  it  can  at  least  be  accepted  as  a 
the  People  rational  interpretation  of  the  relationship  which  exists  or 
and  their  should  cxist  between  the  people  and  their  rulers.  In  the 
sixteenth  and  seventeenth  centuries,  when  the  struggle 
against  absolutism  was  well  under  way,  the  theory  came  to 
be  relied  on  as  a  justification  of  the  right  of  the  people 
to  depose  their  rulers  when  they  were  guilty  of  violating 
the  terms  of  the  compact  made  or  supposed  to  have  been 
made  between  them  and  their  subjects.^  It  was,  for,  ex- 
ample, appealed  to  in  justification  of  the  deposition  of 
Queen  Mary  by  the  Scots,  who  asserted  that  "royal  power 
was  nothing  else  but  a  mutual  covenant  or  stipulation 
between  king  and  people,"^  —  an  idea  which  had  been 
enunciated  and  defended  by  one  of  their  countrymen, 
George  Buchanan ,  in  his  "Rights  of  Kings  among  the  Scots, " 
published  in  1579.  The  doctrine  of  contract  was  not 
defended  by  political  writers  alone;  it  was  sometimes 
admitted  by  kings  themselves  as  expressing  the  proper 
relation  between  them  and  their  subjects.     Thus  we  find 

'  An  example  sometimes  cited  was  the  agreement  between  the  nobles  of  Aragon 
and  their  king,  which  was  embodied  in  the  following  formula :  "We  who  are  as  good 
as  you  choose  you  for  our  king  and  lord,  provided  that  you  observe  our  laws  and 
privileges;  and  if  not,  not."  Quoted  by  Ritchie  from  Robertson's  "Charles  V,"  in 
his  "Darwin  and  Hegel,"  p.  202. 

*  Thus  said  Hooker,  "  Every  particular  person  advanced  into  such  (regal)  au- 
thority hath  at  his  entrance  into  his  reign  the  same  bestowed  on  him,  as  an  estate 
in  condition  by  the  voluntary  deed  of  the  people,  in  whom  it  doth  lie  to  put  by  any 
one  and  to  prefer  some  other  before  him,  better  liked  of  or  judged  fitter  for  the  place." 
"Ecclesiastical  Polity,"  bk.  VHI,  ch.  2,  sec.  8.  Essentially  the  same  opinion  was 
expressed  by  Linguet  in  his  "Vindicise  Contra  Tyrannos." 

*  Quoted  by  Milton  in  his  "Tenure  of  Kings  and  Magistrates." 


THE    COMPACT   THEORY  97 

James  I  of  England  confessing  in  an  address  to  Parliament  justifi- 
in  1609  that  "the  king  binds  himself  by  a  double  oath  to  th^D^po-'^ 
the  observation  of  the  fundamental  laws  of  his  kingdom,   sition  of 
tacitly  as  by  being  a  king  and  so  bound  to  protect  as  well  vio"ate^ 
the  people  as  the  laws  of  his  kingdom;    and  expressly,  by  !?"^ 
his  oath  at  his  coronation,  so  as  every  just  king  in  a  settled 
kingdom   is  bound   to  observe  that  paction  made   to  his 
people  by  his  laws,  in  framing  his  government  agreeable 
thereunto  according  to  that  paction  which  God  made  with 
Noah  after  the  Deluge."  ^    Eighty  years  after  this  royal  de- 
liverance the   English   people  appealed  to  the   "paction" 
theory  as  a  justification  for  the  deposition  of  James  II  and 
the  election  of  a  new  sovereign  to  succeed  him.     The  Con- 
vention of    1689,  which  declared    the  throne  vacant  and 
which  fixed  the  crown  on  William  and  Mary,  asserted  that 
James  had  "endeavored  to  subvert  the  constitution  of  the 
kingdom  by  breaking  the  original  contract  between   king 
and  people"  and  with  having  "violated  the  fundamental 
laws."  ' 

Turning  now  from  the  theory  of  the  political  or  govern- 
mental compact  which  seeks  to  explain  or  interpret  the 
relation  between  society  and  its  rulers,  if  not  the  actual 
transaction  by  which  particular  magistracies  are  instituted, 
we  come  to  consider  in  the  next  place  the  theory  of  the  so- 
cial compact,  the  primary  original  association,  through 
which  the  state  of  nature  is  transformed  into  the  civil 
state  and  the  natural  man  into  a  citizen  with  legal  rights 
and  duties. 

As  already  stated  in  an  earlier  part  of  this  chapter,  the  The 
writers  who  have  supported  the  theory  of  the  social  compact  Na^^ure* 
have  predicated  as  a  theoretical  starting  point  the  existence 
of  a  pre-civil  or  pre-political  condition  of  mankind  which 
they  describe  as  the  "state  of  nature,"  though  they  dilTer 

'  Quoted  by  Locke,  "Civil  Government,"  bk.  II,  ch.  18. 

*  Gardiner,  "  Students'  History  of  England,"  p.  646.  See  also  Jellinek,  op.  cit., 
p.  198. 

POL.  SCI.  —  7 


oS  THE    ORIGIN   OF   THE   STATE 

in  important  particulars  concerning  its  real  character. 
Hobbes,  who  was  the  first  writer  to  attempt  to  describe  in 
detail  the  state  of  nature,  considered  it  to  be  a  state  of 
perpetual  strife  among  the  members  of  the  society;  a  war, 
potential  if  not  actual,  of  all  against  all  {beilum  omnium 
contra  omnes) ;  a  state  of  constant  struggle,  of  fierce  and 
brutal  competition,  and  of  distrust  and  suspicion,  the  hand 
of  each  being  against  all/ 
Hobbes  on  This  Condition,  Hobbes  argued,  was  the  inevitable  result 
of  Nature  o^  the  inherent  egoism  of  man,  who  by  nature  is  a  self- 
seeking  creature,  with  a  "perpetual  and  restless  desire  of 
power,"  a  desire  for  the  gratification  of  his  appetites,  a 
craving  for  glory  which  ends  only  with  his  death.  Men 
in  the  natural  state,  he  said,  were  like  famished  wolves, 
seeking  to  devour  one  another.^  Natural  right,  which  to 
him  was  simply  natural  might,  Hobbes  defined  as  nothing 
more  than  "the  liberty  that  each  man  hath  to  use  his  own 
power  for  the  preservation  of  his  own  nature."  In  such  a 
state  of  society  there  could,  of  course,  be  no  distinction 
between  legal  right  and  wrong,  or  of  justice  or  injustice,  for 
there  is  no  law,  and  in  the  absence  of  law  there  can  be  no 
such  things  as  justice  or  injustice,  right  or  wrong. ^  Might 
alone  under  such  circumstances  determines  right,  and  to 
every  one  belongs  whatever  he  has  the  physical  power  of 
appropriating  and  keeping.* 

^  "The  Leviathan,"  ch.  17.  Hooker,  before  Hobbes,  had  undertaken  to  describe 
the  state  of  nature,  but  only  in  a  brief  way.  His  views  of  the  condition  of  the  natural 
man  were  similar  to  those  advanced  by  Hobbes.     See  Dunning,  p.  211. 

^  Cf.  also  Spinoza,  "Tractatus  Politicus,"  ch.  2,  sec.  14,  and  ch.  5,  sec.  2  (Duff's 
ed.),  where  it  is  maintained  that  men  in  a  state  of  nature  are  enemies.  Cf.  also  Mon- 
tesquieu's estimate  of  the  "natural"  man  as  a  "timid,  weak,  trembling  creature, 
occupied  chiefly  in  panic-stricken  flight  from  the  dangers  which  surround  him." 
"Esprit  des  Lois,"  bk.  I,  ch.  2. 

^  Cf .  Dunning,  p.  270;  also  Rousseau  ("Contrat  social,"  bk.  I,  ch.  8),  who  ob- 
serves that  natural  liberty,  unlike  civil  liberty,  has  no  limits  but  the  strength  of  the 
individual;  see  also  Ritchie,  "Natural  Rights,"  p.  83. 

*  For  further  discussion  and  criticism  of  Hobbes's  theory  of  the  state  of  nature  see 
in  addition  to  the  authorities  already  cited:  Jellinek,  op.  cit.,  pp.  200-213;  T.  H. 
Green,  "Political  Obligations,"  pp.  60-67;  Huxley,  "Natural  and  Political  Rights," 


THE   COMPACT   THEORY 


99 


To  Locke,  on  the  other  hand,  the  state  of  nature  appeared   Locke  on 


to  be  not  necessarily  a  state  of  brutal  strife  among  wild  men, 
but  rather  one  in  which  peace  and  reason  prevail,  for  man 
is  not,  as  Hobbes  maintained,  inherently  vicious,  but  is 
animated  generally  by  the  instincts  of  reason  and  justice. 
He  defined  the  state  of  nature  as  a  "state  of  perfect  freedom 
to  order  their  actions  and  dispose  of  their  persons  as  they 
think  fit,  within  the  bounds  of  the  law  of  nature,  without 
asking  leave  or  depending  upon  the  will  of  any  other  man."  ^ 
But  though  this  be  a  state  of  liberty,  he  continues,  yet  it  is 
not  a  state  of  license.  "The  state  of  nature  has  a  law  of 
nature  to  govern  it,  which  obliges  every  one;  and  [also  a 
law  of]  reason,  which  is  that  law  [which]  teaches  all  man- 
kind who  will  but  consult  it  .  .  .  No  one  ought  to  harm 
another  in  his  life,  health,  liberty,  or  possessions,  for  all  are 
the  workmanship  of  one  omnipotent  and  infinitely  wise 
Creator."  ^  There  being  no  common  authority  empow- 
ered to  enforce  the  law  of  nature,  Locke  observed  that 
"every  man  hath  a  right  to  punish  the  offender  and  be 
executioner  of  the  law  of  nature,^  even  to  the  taking  of  life, 
thereby  freeing  society  of  a  criminal  who  having  renounced 
reason  and  the  laws  of  God  hath  declared  war  against  all 
mankind,  and  may  be  destroyed  as  a  lion  or  a  tiger.  And 
this  in  accordance  with  the  great  law  of  nature,  'whoso  shed- 
deth  man's  blood,  by  man  shall  his  blood  be  shed.'"* 
Locke's  conception  of  the  state  of  nature  thus  differs  from 
that  of  Hobbes  in  that  while,  according  to  him,  the  liberty 
of  the  individual  is  not  limited  by  human  law,  yet  it  is  lim- 
ited by  the  law  of  nature  and  the  dictates  of  reason ;  and 
hence  the  "natural"  man  has  a  right,  not  to  everything  he 
is  physically  capable  of   appropriating,  but  only  to  such 

in  his  Essays  ("Methods  and  Results");  Woolsey,  "Political  Science,"  vol.  I,  sec. 
62;  and  Pradier-Fodere,  "  Prineipes  generaux  de  Droit  de  Politique,"  etc.,  p.  22. 

'  Again  he  says,  "Men  living  together  according  to  reason  without  a  common  su- 
perior on  earth  with  authority  to  judge  between  them  is  properly  in  the  state  of 
nature."     "Two  Treatises  of  Government,"  bk.  II,  ch.  3. 

'  Op.  cit.,  bk.  II,  ch.  2.  » Ibid.,  sec.  8.  *  Ibid.,  sec.  11. 


the  State 
of  Nature 


lOO 


THE   ORIGIN  OF   THE    STATE 


Inconven- 
iences of 
the  State 
of  Nature 


things  as  he  can  use  without  depriving  others  of  a  similar 
advantage.*  In  short,  with  Locke  natural  liberty  is  not 
the  same  as  physical  power;  it  is  rather  might  limited  by 
the  natural  right  of  others. 

Concerning  the  existence  of  a  law  of  nature,  Locke  says 
"it  is  certain  that  there  is  such  a  law,  and  that,  too,  as 
intelligible  and  plain  to  a  rational  creature  and  a  studier 
of  that  law  as  the  positive  laws  of  commonwealths,  nay, 
possibly  plainer."  ^  Nevertheless,  he  did  not  regard  the 
state  of  nature  as  an  ideal  condition.  He  admitted  that 
there  were  "many  things  wanting"  in  such  a  state.  Al- 
though man  in  the  state  of  nature,  he  said,  is  the  "absolute 
lord  of  his  own  person  and  possessions,  equal  to  the  greatest 
and  subject  to  nobody,"  yet  the  enjoyment  of  his  wide 
freedom  is  "very  uncertain  and  constantly  exposed  to  the 
invasions  of  others,"  while  the  enjoyment  of  his  property 
is  "very  unsafe  and  very  insecure."'  First  of  all,  there  Is 
the  want  of  an  established  known  law  received  and  allowed 
by  common  consent  to  be  the  standard  of  right  and  wrong 
and  the  common  measure  to  decide  all  controversies  be- 
tween them.  "For  though  the  law  of  nature  is  plain  and 
intelligible  to  all  rational  creatures,  yet  men,  being  biased 
by  their  interest  as  well  as  ignorant  for  want  of  study 
of  it,  are  not  apt  to  allow  of  it  as  a  law  binding  to  them  in 
their  application  of  it  to  their  particular  cases."  There 
being  no  common  judge  or  authority  to  interpret  the  law 
of  nature  and  settle  disputes  in  accordance  with  that  law, 
each  individual  must  be  both  judge  and  executioner  and 
the  "inconveniences"  are  very  great  where  men  are  judges 

*  Cf.  Ritchie,  "Darwin  and  Hegel,"  p.  i88.  Th^  difference  between  Hobbes  and 
Locke  is  much  more  one  of  psychology  than  of  belief  as  to  historical  fact.  Locke 
recognized,  as  Hobbes  did  not,  that  among  the  natural  instincts  and  emotions  of 
men  the  altruistic  play  just  as  prominent  a  part  as  the  selfish  ones. 

*  Op.  cit.,  bk.  H,  ch.  2,  sec.  12.  Cf.  also  Hooker,  who  says  of  the  laws  of  nature, 
they  "do  bind  men  absolutely  even  as  they  are  men,  although  they  never  have  any 
settled  fellowship,  never  any  solemn  agreement  among  themselves  what  to  do  or 
not  to  do."     "  Ecclesiastical  Polity,"  bk.  I,  sec.  le. 

3  Ibid.,  bk.  H,  ch.  9. 


THE   COMPACT  THEORY  loi 

in  their  own  cases.  In  short,  in  the  state  of  nature,  "every 
man  must  be  his  own  law  court,  and  every  man  his  own 
policeman."  Locke's  view  that  the  state  of  nature  was  not 
a  condition  of  warfare  and  struggle  but  rather  one  of  peace 
and  order,  though  somewhat  wretched  and  inconvenient, 
was  in  substance  the  view  of  Milton  in  his  "Tenure  of  Kings 
and  Magistrates"  (1649),  and  of  the  German  jurist  Pufen- 
dorf  in  his  "De  Jure  Naturse  et  Gentium,"  published  in 
1672.  They  conceived  the  state  of  nature  rather  as  a  pre- 
political  than  a  pre-social  state,  that  is,  a  condition  of 
society  in  which  men  were  united  by  social  bonds,  but  yet 
without  political  organization,  whereas  Hobbes  identified 
the  state  of  nature  with  a  condition  of  society  still  in  a 
virtual  state  of  savagery.^ 

The  French  writer   Rousseau,   the    third  of   the    great  Rousseau 
triumvirate    of    political    philosophers    to    expound     and  s?ate% 
popularize  the  social  compact  theory,  conceived  the  pre-  Nature 
political  state  of  mankind  to  be  one  approaching  the  ideal 
rather  than  an  actual  primitive  historical  condition.    In  his 
"Discourse  on  Inequality, "  published  in  1754,  he  declared  it 
to  be  in  some  respects  the  happiest  period  of  human  exist- 
ence.    In  "  Le  Contrat  social  "  (1762),  where  he  elaborates 
his  views  more  at  length,  he  describes  the  state  of  nature 
as  one  "where  all  is  common"  and  where  "I  owe  nothing 
to  those  to  whom  I  have  promised  nothing.     I  recognize 
as  belonging  to  others  only  what  is  not  useful  to  me.     This 
is  not  the  case  in  the  civil  state  where  all  rights  are  fixed 
by  law."  ^     Again  he  says,  "Man  is  born  free  and  he  is 
everywhere  in  chains."  ^     From  a  condition  of  primitive 

*  Compare  on  this  point  Dunning,  op.  cit.,  p.  319.  ^  Bk.  II,  ch.  6. 

^  Bk.  I,  ch.  I.  The  fallacy  of  Rousseau's  theory  that  the  state  of  nature  is  one  of 
perfect  freedom  has  been  well  shown  by  Thomas  Hill  Green.  In  such  a  state, 
says  Green,  "men  must  have  been  thwarting  each  other  and  only  those  could  be  free 
who  were  not  equal  to  the  rest,  who  by  virtue  of  their  superior  power  could  override 
the  rest."  "Political  Obligations,"  p.  70.  A  state,  however,  organized  and  con- 
ducted according  to  Rousseau's  notions,  would  have  been  more  of  an  ideal  to  him 
than  the  pre-civil  condition. 


I02 


THE   ORIGIN   OF   THE   STATE 


"Escape" 
from  the 
State  of 
Nature 
through  a 
Covenant 


simplicity  in  which  man  was  unfettered  by  the  shackles  ot 
authority,  where  he  was  free  to  live  his  Hfe  without  being 
bound  by  the  artificial  bonds  of  human  laws,  he  has  been 
driven  by  his  own  inherent  sinfulness  into  the  civil  state, 
where  he  is  more  or  less  a  slave  to  the  whims  of  authority. 

Poetic  imaginations  have  often  pictured  the  state  of 
nature  as  an  earthly  paradise,  in  which  happiness,  innocence, 
and  the  joys  of  unrestricted  freedom  abound  without  limit, 
where  equality  reigns,  where  the  yoke  of  law  and  the  bur- 
dens of  state  press  upon  the  shoulders  of  no  man  and  where 
none  are  subjects  and  none  sovereigns.^  But  we  are  safe 
in  saying  that  no  such  condition  of  society  ever  had  any 
existence  except  in  the  imagination  of  the  poet  or  the 
philosopher.  If  any  considerable  numbers  of  the  human 
race  ever  lived  in  a  state  of  nature,  so  called,  the  conditions 
could  not  have  been  very  different  from  what  Hobbes 
conceived  them  to  be.^ 

Escape  from  this  intolerable  condition  took  place,  we  are 
told,  through  the  process  of  compact  or  covenant;  that  is, 
the  men  of  the  community  "contracted"  themselves  out 
of  the  natural  state  into  a  civil  state.  The  advocates  of 
the  compact  theory  all  agree  that  in  general  this  was  the 
manner  of  escape,  though  they  differ  as  to  the  exact  nature 
of  the  procedure.  Thus,  observes  Hooker,  there  is  no 
relief  for  mankind  from  the  "grievous  injuries  and  wrongs" 
of  the  pre-civil  state  but  by  "growing  into  composition 
and  agreement  amongst  themselves  by  ordering  some  kind 
of    public    government,  by    yielding    themselves    subject 

*  Compare,  for  example,  Pope's  "  Essay  on  Man  "  (III,  148),  "  The  state  of  nature 
was  the  reign  of  God  " ;  and  Shakespeare's  portrayal  of  it  is  a  state  where  there  was 

"  No  occupation ;  all  men  idle,  all ; 
And  women,  too,  but  innocent  and  pure ; 
No  sovereignty." 

—  "  The  Tempest,  "  Act  II,  scene  i. 

^Compare  Bluntschli,  op.  cit.,  p.  284.  Locke  admits  that  "we  seldom  find  any 
number  of  men  who  live  any  time  together  in  this  state."  Op.  cit.,  Morley's 
ed.,  p.  259. 


THE   COMPACT   THEORY  103 

thereunto."  ^  According  to  his  view,  the  social  and  poHti- 
cal  compact  were  successive  parts  of  the  same  process,  the 
one  being  a  preliminary  stage  of  the  other.  That  is,  the 
people  first  covenanted  among  themselves  to  submit  to  a 
common  superior,  and  then  in  their  organized  capacity  they 
chose  a  particular  ruler  and  entered  into  a  compact  with  him 
by  which  they  promised  obedience  in  return  for  protection.^ 

It  was,  said  Hobbes,  as  if  each  individual  should  say,  Hobbes's 
"I  authorize  and  give  up  my  right  of  governing  myself  to  ^"^  \ 
this  man  or  this  assembly  on  this  condition,  that  thou 
give  up  thy  right  to  him  and  authorize  all  his  actions  in 
like  manner."  ^  Thus  there  is  a  mutual  surrender  of  natu- 
ral rights  and  a  bestowal  of  all  "power  and  strength"  upon 
a  common  superior  in  return  for  better  secured  legal  rights 
and  the  substitution  of  a  single  will  in  the  place  of  a  multi- 
tude of  conflicting  wills.  Each  individual  surrenders  for 
the  common  benefit  his  natural  right  to  do  what  he  will 
and  receives  in  return  the  assurance  of  protection  and  se- 
curity in  that  which  he  has  or  may  rightfully  possess. 
Thus,  according  to  Hobbes,  there  is,  in  addition  to  the  fun- 
damental original  pact  by  which  the  state  is  created,  a 
subsidiary  pact,  by  which  each  man  agrees  to  obey  the 
person  or  assembly  who  is  the  choice  of  the  majority. 
"This  done,  the  multitude  so  united  in  one  person  is  called 
commonwealth  or  in  Latin  a  civitas,  and  the  person  or 
persons  upon  whom  this  power  is  bestowed  is  called  the 
sovereign  and  all  others  are  subjects."  The  covenant 
thus  made  is  irrevocable  without  the  consent  of  both  parties 
to  the  contract. 

"I  readily  grant,"  says  Locke,  "that  civil  government  is  Locke's 
the  proper  remedy  for  the  inconveniences  of  the  state  of     ^^^ 

^  "Ecclesiastical  Polity"  (Morley's  ed.),  p.  93.         ^  Ibid.,  bk.  VIII,  ch.  2,  sec.  8. 

'"Leviathan,"  ch.  17.  "Weary  of  the  state  of  war,  individuals  by  a  covenant 
agree  to  devolve  their  personality,  to  use  the  language  of  the  Roman  law,  upon  some 
individual  or  collection  which  is  henceforth  to  represent  them  and  to  be  considered  as 
acting  with  their  combined  powers."  Quoted  by  T.  H.  Green,  "Political  Obliga- 
tions," p.  61. 


I04 


THE   ORIGIN   OF   THE   STATE 


Hobbes's 

and 

Locke's 

Views 

compared 


nature  which  must  certainly  be  great  where  men  may  be 
judges  in  their  own  case."  *  Nevertheless,  he  asserts  that 
certain  kinds  of  civil  government  (or  misgovernment)  are 
worse  than  the  state  of  nature  (or  anarchy),  the  "incon- 
venience being  all  as  great  and  as  near,  but  the  remedy 
farther  off  and  more  difficult."  ^  The  answer  therefore 
to  the  question  whether  civil  government  is  preferable  to 
the  state  of  nature  depends  on  the  character  of  the  govern- 
ment. On  the  whole,  the  "inconveniences"  and  "uncer- 
tainties" of  the  natural  state  outweigh  the  advantages,  and 
men  are  soon  "driven  into  society, "  where  they  "take 
sanctuary  under  the  established  laws  of  government  and 
therein  seek  the  preservation  of  their  property."  Accord- 
ing to  Locke,  the  transformation  occurs  through  the  action 
of  the  people  in  "incorporating"  themselves  into  a  body 
politic  "wherein  the  majority  have  a  right  to  act  and 
conclude  the  rest."  ^  They  "covenant"  with  each  other 
to  establish  a  government, — a  covenant  they  are  bound 
by  the  law  of  nature  to  observe,  —  and  out  of  this  cove- 
nant the  obligation  of  obedience  and  submission  arises.* 
"There  and  there  only,"  he  said,  "is  political  society  where 
every  one  of  the  members  hath  quitted  the  natural  power, 
resigned  it  up  into  the  hands  of  the  community  in  all  cases 
that  exclude  him  not  from  appealing  for  protection  to  the 
law  established  by  it."  ®  This  is  the  original  social  compact 
by  which  civil  society  is  established  in  the  place  of  the  natu- 
ral state,  not  the  governmental  com.pact  between  an  al- 
ready organized  society  and  a  particular  sovereign. 

According  to  Locke,  the  covenant  is  between  people  and 
king;  ®  according  to  Hobbes,  the  king  was  not  a  party,  but 

'  "Two  Treatises  of  Government  "  (Morley's  ed.),  p.  197. 

*  Ibid.,  sec.  225.  ^  Ibid.,  sec.  95. 

*  Cf.  Green,  "Political  Obligations,"  p.  69. 

*  Op.  cit.,  ch.  7,  sec.  87. 

*  Ritchie  denies  that  the  covenant  described  by  Locke  was  between  king  and 
people.  He  holds  that  the  original  compact  upon  which  Locke  bases  government 
is,  just  as  vdth  Hobbes  and  Rousseau,  a  compact  among  individuals  ("  Darwin  and 


THE   COMPACT   THEORY  105 

only  the  people  each  with  all.  Hobbes  considered  that  the 
authority  bestowed  on  the  sovereign  was  not  through  agree- 
ment but  rather  through  the  surrender  of  certain  rights 
to  him.  Not  being  bound  himself  as  a  party  to  the  agree- 
ment, he  could  not  be  deprived  by  deposition  of  the  author- 
ity bestowed  upon  him,  and  hence  to  resist  him  was  to 
return  to  the  state  of  nature.  In  other  words,  the  right 
of  the  sovereign  to  rule  is  irrevocable  and  indefeasible.* 
Locke,  on  the  other  hand,  regarding  the  king  as  a  party 
to  the  covenant,  held  that  he  might  forfeit  his  office  through 
a  violation  of  the  terms  upon  which  he  was  vested  with 
authority.  Hobbes  was  in  fact  the  apologist  and  defender 
of  the  Stuart  pretensions  to  rule  by  divine  right;  Locke  was 
the  exponent  and  advocate  of  the  principles  of  the  English 
Revolution  against  the  absolutism  of  the  Stuart  kings. 

Rousseau's  idea  of  the  social  compact  was,  as  has  been  Rousseau 
said,  that  of  the  "original  association"  by  which  the  state  xram^ioa 
of  nature  was  transformed  into  the  civil  state,  not  the  act  from  the 
by  which  a  particular  government  was  instituted.     There  to  the 
is,  he  said,  but  one  contract  and  that  is  the  agreement  to 
form  a  civil  society.     That  done,  a  government  is  estab- 
lished by  a  legislative  act  authorizing  the  government  and 
an  executive  act  appointing  the  magistrates,  but  there  is 
no  contractual  element  in  the  process.^     He  thus  agreed 
with  Hobbes  in  holding  that  the  king  was  no  party  to  the 
compact,  but,  unlike  Hobbes,  he  maintained  that  the  sur- 
render of  rights  was  not  to  a  monarch,  but  to  the  whole 
society.     "Each   of  us,"   he   said,    "puts   his   person   and 

Hegel,"  p.  206).  See  also  his  note  in  the  English  translation  of  Bluntschli's  "AIl- 
gemeine  Staatslehre,"  p.  295,  where  he  asserts  that  Locke's  theory  is  almost  iden- 
tical with  that  of  Rousseau. 

*  "  Leviathan,"  ch.  14.  "This  covenant,"  says  Hobbes,  "being  in  the  nature  of 
the  case  irrevocable,  the  sovereign  derives  from  it  an  indefeasible  right  to  direct  the 
actions  of  the  society  over  which  it  is  sovereign."  Ibid.,  ch.  17.  See  also  Green, 
"Political  Obligations,"  p.  61. 

^"Contrat  social,"  bk.  Ill,  chs.  16  and  17.  But  how  could  a  "legislative  act" 
precede  the  establishment  of  a  government  ?  Manifestly  Rousseau's  reasoning  is  less 
logical  than  that  of  Hobbes. 


Political 
State 


lo6  THE   ORIGIN   OF   THE   STATE 

faculties  into  a  common  stock  under  the  direction  of  the 
general  will,  and  we  receive  each  member  as  an  indivisible 
part  of  the  whole."  This  "act  of  association  produces  a 
moral  and  collective  body"  or  a  "public  personage,"  which 
formerly  took  the  name  of  "city,"  but  is  now  called  a 
"republic"  or  "body  politic."  It  is  called  the  state  when 
passive,  the  sovereign  when  active,  and  a  power  when 
compared  with  its  equals.*  Rousseau,  unlike  Hobbes, 
upheld  the  sovereignty  of  the  people  rather  than  the  ab- 
solutism of  the  king.  According  to  Hobbes,  the  passage 
from  the  state  of  nature  to  the  civil  state  is  through  a  sur- 
render of  rights  to  a  sovereign;  according  to  Locke,  through 
the  institution  of  a  common  superior,  to  secure  rights  which 
already  existed  in  the  natural  state;  according  to  Rousseau, 
through  the  surrender  of  rights,  not  to  a  sovereign  king,  but 
to  the  sovereign  people.^  Regarding  the  nature  of  the 
original  association  by  which  the  "passage"  from  the  pre- 
civil  state  was  effected,  he  said,  "each  man  giving  him- 
self to  all  gives  himself  to  none;  and  there  is  not  an  associate 
over  whom  he  does  not  acquire  the  same  right  as  is  ceded, 
an  equivalent  is  gained  for  all  that  is  lost,  and  man  is  free 
to  keep  what  he  has."^  Again  he  remarks,  "What  man 
loses  by  the  social  contract  is  his  natural  liberty  and  an 
unlimited  right  to  anything  that  tempts  him  which  he  can 
obtain;  what  he  gains  is  civil  liberty  and  the  ownership 
of  all  that  he  possesses."  ^     The  passage  from  the  state  of 

*  "  Contrat  social,"  bk.  I,  ch.  6. 

'According  to  John  Austin  the  transition  from  the  "natural"  to  the  civil  state 
involved  three  stages:  (i)  the  future  members  of  the  state  to  be  created  jointly  resolve 
to  unite  themselves  into  an  independent  political  society.  This  may  be  called  the 
pactum  unionis.  (2)  This  done,  they  jointly  determine  the  constitution  of  its  govern- 
ment. This  may  be  called  the  pactum  constitutionis.  (3)  Then  follows  an  exchange 
of  promises  between  the  inchoate  sovereign  and  his  inchoate  subjects,  the  latter  agree- 
ing to  obey  the  former,  who  in  turn  promises  to  govern  according  to  the  constitution. 
"Jurisprudence"  (Student's  edition),  p.  129. 

'  Ihid.,  bk.  I,  ch,  6. 

*  Ibid.,  bk.  I,  ch.  8.  "Instead  of  destroying  natural  equality,"  says  Rousseau, 
"the  fundamental  compact  substitutes,  on  the  contrary,  a  moral  and  legitimate 


THE   COMPACT   THEORY  107 

nature  to  the  civil  state,  continued  Rousseau,  produces  in 
man  a  very  remarkable  change,  by  substituting  in  his  con- 
duct justice  for  interest  and  giving  to  his  actions  a  moral 
force  which  they  lacked  before.  True,  he  loses  "several 
advantages"  by  the  change,  but  the  others  gained  are  so 
very  great  in  comparison  that  he  ought  to  "bless  without 
ceasing,  the  happy  moment  which  took  him  forever  from  it 
[the  state  of  nature]  and  made  of  a  dull  stupid  animal  an 
intelligent  being  —  a  man."  ^ 

The  idea  that  man  in  passing  from  the  state  of  nature  to  Biack- 
the  civil  state  exchanges  his  natural  liberty  for  civil  liberty  t^e"su°- 
was  supported  by  many  writers  of  Rousseau's  time  and  stitution 
thereafter.     Blackstone  stated  the  nature  of  the  transac-  cai  for 
tion  and  the  advantages  of  the  change  as  follows:    "Every  f^/"'.*^ 
man  when  he  enters  society  gives  up  a  part  of  his  natural 
liberty,   as  the  price  of   so  valuable  a  purchase;   and,    in 
consideration     of    receiving     the    advantages    of   mutual 
commerce,    obliges    himself    to    conform    to    those    laws 
which   the   community    has    thought   proper  to  establish. 
And  this  species  of  legal  obedience  and  conformity  is  in- 
finitely more  desirable  than  that  wild  and  savage  liberty 
which  is  sacrificed  to  obtain  it.     For  no  man  that  considers 
a  moment  would  wish  to  retain  the  absolute  and  controlled 
power  of  doing  whatever  he  pleases,   the  consequence  of 
which  is,  that  every  other  man  would  also  have  the  same 
power,  and  then  there  would  be  no  security  to  individuals 
in  any  of  the  enjoyments  of  life.     Political,  therefore,  or 
civil  liberty,  which  is  that  of  a  member  of  society,  is  no 
other  than  natural  liberty,  so  far  restrained  by  human  laws 

equality  for  that  which  nature  may  have  given  of  physical  inequality  among  men, 
and  while  they  may  be  unequal  in  strength  or  genius  they  become  equal  by  agreement 
and  right."     Ibid.,  bk.  I,  ch.  9. 

'  Ibid.,  bk.  I,  ch.  8.  Compare  also  Kant,  who,  speaking  of  the  institution  of  the 
state,  said,  "All  and  each  of  the  people  give  up  their  external  freedom  in  order  to 
receive  it  immediately  again  as  members  of  a  commonwealth  and  the  act  by  which 
they  are  constituted  into  a  state  is  termed  the  original  contract."  "Rechtslehre,'' 
Eng.  trans,  by  Hastie,  p.  169. 


io8  THE   ORIGIN   OF   THE   STATE 

(and  no  farther)   as   is  necessary  and   expedient   for  the 
general  advantage  of  the  pubHc."  * 

IV.     CRITICISM    OF   THE   COMPACT   THEORY 

Critics  of  The  doctrine  that  the  state  originated  in  compact  or 
theXheory  qqj^^^^q^  enjoyed  a  wide  popularity  during  the  seventeenth 
and  eighteenth  centuries,  but  during  the  nineteenth  it 
underwent  a  searching  criticism,  if  it  did  not  receive  its 
death  blow,  from  the  hands  of  such  scholars  as  Ludwig 
von  Haller,  Jeremy  Bentham,  Sir  Henry  Maine,  Thomas 
Hill  Green,  Edmund  Burke,  Professor  Bluntschli,  Sir 
Frederick  Pollock,  Professor  Ritchie  and  many  others.  In- 
deed, before  the  publication  of  Rousseau's  celebrated  "  Con- 
trat  social,"  the  English  philosopher  Hume  had  demolished 
the  theory  by  showing  the  inconsistency  of  contract  as  the 
relation  between  the  governed  and  the  governors.^  Ben- 
tham did  not  consider  the  theory  worthy  of  extended  con- 
sideration, and  after  referring  approvingly  to  Hume's 
"demolition"  of  the  theory,  dismissed  it  with  the  following 
remark,  "I  bid  adieu  to  the  original  contract;  and  I  left 
it  to  those  to  amuse  themselves  with  this  rattle,  who  could 
think  they  needed  it."  ^  Sir  Henry  Maine  asserts  that 
nothing  could  be  "more  worthless"  than  such  an  account 
of  the  origin  of  society  and  government  as  that  given  by 
Hobbes,"  while  Sir  Frederick  Pollock  characterizes  it  alto- 

*  "  Commentaries  on  the  Laws  of  England  "  (Chase's  ed.),  P-  64.  The  doctrine 
that  rights  are  surrendered  when  the  passage  to  the  civil  state  takes  place  is,  as  Wool- 
sey  remarks,  utterly  false  ("Political  Science,"  vol.  I,  part  III,  ch.  2).  "No  rights 
which  may  properly  be  called  rights  are  surrendered  especially  if  the  state  be  just. 
If  they  are  rights  which  properly  belong  to  the  individual  in  the  state  of  nature, 
they  will  not  only  be  continued  but  legally  defined  and  guaranteed.  The  idea  is  a  pure 
fiction.  The  state  is  an  institution  for  defining  and  protecting  rights,  not  for  abridg- 
ing or  destroying  them."  See  also  Ritchie,  "Natural  Rights,"  and  Fouillee,  "Science 
socialecontemporaine,"  ch.  2. 

*See  his  treatise,  "Of  Human  Nature,"  bk.  Ill,  part  II  (1740)1  and  "Of  the 
Original  Contract"  (1752). 

*  "Fragment  on  Government,"  ch.  I,  sec.  36. 

*  "Early  History  of  Institutions,"  p.  356. 


CRITICISM    OF   THE    COMPACT   THEORY  109 

gether  too  harshly  as  one  of  the  "most  successful  and  fatal 
of  political  impostures."  ^ 

In  the  first  place  the  theory  Is  unhistorical.  As  we  have  Theory 
already  said,  history  does  not  afford  a  single  well-authen-  icaf'^*°'" 
ticated  instance  of  a  state  which  came  into  existence  through 
deliberate  and  voluntary  agreement  among  men  who  were 
not  already  accustomed  to  political  authority.^  Histori- 
cally, observes  T.  H.  Green,  the  theory  is  a  fiction.^  The 
classical  example  usually  cited  by  the  advocates  of  the 
theory  is  that  of  the  famous  Mayflower  compact,  by  which  a  The  May- 
body  of  emigrants  to  America  in  1620  entered  into  an  compact 
agreement  whereby  they  "solemnly  and  mutually,  in  the 
presence  of  God  and  of  one  another,  covenanted  and  com- 
bined themselves  together  into  a  civil  body  politic  for  their 
better  ordering  and  preservation."  "When  Carlyle  objects 
that  Jean  Jacques  could  not  fix  the  date  of  the  social  con- 
tract," says  Professor  Ritchie,  "it  would  at  least  be  a 
possible  retort  to  say  that  the  date  was  the  nth  of  Novem- 
ber, 1620."  *  But  upon  examination  this  as  well  as  the 
other  instances  relied  upon  by  the  advocates  of  the  theory 
will  be  seen  to  be  not  examples  of  the  founding  of  new 
commonwealths  by  men  in  a  state  of  nature,  but  merely 
the  transplanting  to  new  lands  of  political  institutions  by 
men  already  subject  to  political  authority.  Indeed,  in  the 
case  cited  above,  the  transaction  was  nothing  more  than  the 
extension  of  an  already  existing  state  to  a  country  not  yet 
inhabited  by  civilized  races.  The  Mayflower  covenanters, 
in  fact,  expressly  acknowledged  that  they  were  "loyal 
subjects"  of  an  existing  sovereign,  instead  of  men  trying 
to  escape  from  the  state  of  nature.^     If  the  compact  theory 

'  "History  of  the  Science  of  Politics,"  p.  75. 

*  Compare  Bluntschli,  "  Allgemeine  Staatslehre,"  bk.  IV,  ch.  9. 

'  "Political  Obligations,"  p.  63.  "*  Darwin  and  Hegel,"  p.  214. 

*  The  founding  of  the  commonwealth  of  Massachusetts,  whose  constitution  asserts 
that  the  people  have  entered  into  "an  original,  explicit,  and  solemn  compact  with  each 
other,"  is  sometimes  cited  also  as  furnishing  the  historical  proof,  but  in  reality  it  is 
only  an  empty  declaration,  not  the  record  of  a  historical  fact. 


no 


THE   ORIGIN   OF   THE   STATE 


Political 
Conscious- 
ness as- 
sumed 


Govern- 
mental 
Compact 
does  not 
explain 
the  Origin 
of  the 
State 


meant  nothing  more  than  that  the  extension  of  the  state 
to  new  territories,  by  men  already  subject  to  state  organiza- 
tion or  the  creation  of  a  new  state  form  in  the  place  of  one 
already  existing,  is  sometimes  the  result  of  convention, 
historical  examples  in  abundance  could  be  cited. 

In  the  second  place,  the  theory  must  be  rejected  upon 
grounds  of  philosophy  and  reason.  It  is  impossible  to 
believe  that  men  in  a  state  of  nature  could  have  "con- 
tracted" themselves  into  the  civil  state  by  a  deliberate  and 
conscious  act  of  convention.  The  theory  assumes  the  exist- 
ence of  what  is  manifestly  not  present  in  the  minds  of  men 
still  in  the  natural  state,  namely,  an  already  highly  devel 
oped  political  consciousness.  "It  presupposes,"  observes 
Burgess,  "  that  the  idea  of  the  state  with  all  its  attributes 
is  consciously  present  in  the  minds  of  the  individuals  pro- 
posing to  constitute  the  state,  and  that  the  disposition  to 
obey  the  law  is  already  universally  established.  Now  we 
know  that  these  conditions  never  exist  in  the  beginning  of 
the  political  state  of  a  people,  but  are  attained  only  after 
the  state  has  made  several  periods  of  its  history."  ^  Civil 
society  never  began  by  a  contract  between  individuals  or 
between  an  unorganized  mass  of  individuals  and  a  magis- 
trate. The  conventional  element  belongs  to  a  later  stage 
of  social  development.  The  idea  of  contract  may,  as  has 
been  said,  play  an  important  part  in  changing  the  form  of 
an  already  existing  state,  in  creating  new  forms  of  govern- 
ment, or  in  extending  the  state  to  new  territories  by  persons 
already  subject  to  political  authority;  but  that  does  not 
explain  the  circumstances  of  the  original  creation  of  the 
state. 

The  form  of  convention,  however,  which  we  have  de- 
scribed as  the  political  or  governmental  compact  is  not  im- 
possible, and,  indeed,  there  are  some  historical  examples  of 
such  transactions;  but  the  theory  even  in  this  form  neces- 
sarily assumes  the  existence  of  a  people  already  organized 

*  "Political  Science  and  Constitutional  Law,"  vol.  I,  p.  62. 


CRITICISM    OF   THE   COMPACT   THEORY  HI 

and  capable  of  entering  into  contractual  relations.  Men 
in  a  state  of  nature  cannot  enter  into  compacts  with  rulers; 
they  must  first  become  organized,  and  when  they  have  done 
this,  they  already  constitute  a  state.  The  theory  of  the 
governmental  compact,  therefore,  does  not  explain  the 
origin  of  the  state  any  more  than  does  the  theory  of  the 
social  compact;  it  only  explains  a  particular  transaction 
in  the  later  development  of  the  state  life  or  defines  the 
nature  of  the  relationship  between  the  people  in  their 
politically  organized  capacity  and  their  governing  authori- 
ties. The  theory  of  the  social  contract,  says  Green,  im- 
plies a  false  notion  of  rights.  Since  those  who  contract 
must  have  rights,  the  theory  implies  that  individuals  have 
certain  rights  independently  of  society,  which  they  bring 
with  them  to  the  transaction.^ 

The  notion  of  covenant  as  the  origin  of  political  authority  Relation 
rests  also  on  a  false  basis. ^     It  would  be  just  as  logical,  Jj^e^^^a^e 
says  Ludwig  von  Haller,  to  speak  of  a  contract  between  an  and  the 
individual  and  the  sun  that  he  would  allow  himself  to  be  not  oJn" 
warmed  by  it,  or  between  him  and  the  frost  that  he  would  tractuai 
clothe  himself  better.^     It  is  sometimes  argued,  however, 

'  "Political  Obligations,"  p.  66. 

*  Cf.  Jellinek,  "Recht  des  mod.  Staates,"  p.  208. 

'  "  Restoration  of  Political  Science,"  quoted  by  Merriam,  "History  of  Sovereignty," 
p.  65.  Compare  Lieber,  who  says,  "  If  we  mean  (by  the  contract  theory)  an  actual 
agreement  at  some  definite  time  between  human  beings  running  wild,  who  enter 
after  mature  deliberation  into  a  solemn  covenant,  and  that  a  contract  of  this  sort  with 
a  particular  government  or  dynasty  is  binding  forever,  the  idea  is  radically  wrong  and 
leads  to  dangerous  conclusions,  favoring  tyranny  or  licentiousness."  ("  Political 
Ethics,"  vol.  I,  pp.  283-294.)  "The  hypothesis  of  the  fundamental  pact,"  observes 
John  Austin,  "is  not  only  a  fiction  approaching  to  an  impossibiity  that  the  institution 
of  a  state  or  civitas  or  the  formation  of  a  society  political  and  independent  was  never 
preceded  or  accompanied  by  an  original  covenant  properly  so-called,  or  by  aught 
resembling  the  idea  of  a  proper  original  covenant."  Again  he  says:  "  If  you  would 
suppose  an  original  covenant  which  as  a  mere  hypothesis  will  hold  good,  you  must 
suppose  that  the  society  about  to  be  formed  is  composed  entirely  of  adult  members : 
that  all  these  adult  members  are  persons  of  sane  mind,  and  even  of  much  sagacity 
and  much  judgment ;  and  fairly  acquainted  with  political  and  ethical  science.  On 
these  bare  possibilities  you  may  build  an  original  covenant  which  shall  be  a  cohe- 
rent fiction.     It  is  hardly  necessary  to  add  that  the  hypothesis  of  the  original  cove- 


112  THE   ORIGIN   OF   THE   STATE 

that  although  the  contract  theory  cannot  be  accepted  as  an 
explanation  of  a  historical  fact,  that  is,  as  an  account  of  the 
origin  of  some  actual  state  in  the  past,  it  may  nevertheless 
be  received  as  descriptive  of  the  proper  relationship  between 
the  state  and  its  citizens.  But  even  in  this  form  the  theory 
is  sound  only  within  very  narrow  limits,  if  at  all,  for 
modern  political  science  does  not  regard  the  relationship 
between  the  individual  and  the  state  as  contractual  in  char- 
acter. If  it  were,  then  it  would  follow  logically  that  any 
individual  would  be  free  to  become  a  party  to  the  contract 
and  hence  a  member  of  the  state,  or  to  refuse  at  will  and  thus 
remain  in  a  condition  of  outlawr\\  Such  a  view  tends  to 
make  the  state  a  matter  of  individual  caprice,  and  if  the 
doctrine  is  followed  out  to  its  logical  conclusion,  is  subver- 
sive of  authority  and  leads  to  anarchy  and  dissolution.^ 
The  obligations  of  the  citizen  manifestly  do  not  rest  on  a 
contractual  basis.  If  so,  what  shall  we  say  of  the  binding 
force  of  a  covenant  when  the  original  contracting  parties 
have  disappeared?  Does  the  state  expire  with  the  death 
of  the  partners,  and  must  it  be  renewed  by  their  successors, 
or  is  the  original  contract  binding  forever  upon  future  gen- 
erations who  have  never  consented  to  the  agreement? 
The  state  The  State,  declared  Edmund  Burke,  in  his  "Reflections on 
me«V*art-  the  French  Revolution,"  "ought  not  to  be  considered  as 
nership  nothing  better  than  a  partnership  in  a  trade  of  pepper  and 
coffee,  calico,  or  tobacco,  or  some  other  such  low  concern, 
to  be  taken  up  for  a  little  temporary  interest  and  to  be  dis- 
solved by  the  fancy  of  the  parties."  "  It  is,"  he  continues, 
"a  partnership  in  a  higher  and  more  permanent  sense  — 
a  partnership  in  all  science;   a  partnership  in  all  art;   a 

nant  in  any  of  its  forms  or  shapes  has  no  foundation  in  actual  facts.  There  is  no 
historical  evidence  that  the  hypothesis  has  ever  been  realized."  "  Jurisprudence," 
pp.  135,  137. 

'  Cf.  Jellinek,  op.  cit.,  p.  208;  Bluntschli,  op.  cit.,  bk.  IV,  ch.  9;  McKechnie,  op 
cit.,  p.  33;  Woolsey,  op.  cit.,vo\.  I,  p.  191;  Hume,  "Of  the  Original  Compact,** 
Works,  vol.  I,  p.  446  ff.;  Willoughby,  "Nature  of  the  State,"  p.  125;  Lieber, 
"Political  Ethics,  "  vol.  I,  pp.  283-294. 


CRITICISM   OF   THE   COMPACT  THEORY  113 

partnership  in  every  virtue  and  in  all  perfection.  As  the 
ends  of  such  a  partnership  cannot  be  obtained  in  many- 
generations  it  becomes  a  partnership  not  only  between  those 
who  are  living,  but  between  those  who  are  dead  and  those 
who  are  to  be  born."  ^  The  individual  thus  becomes  a 
member  of  the  state,  not  by  admission  as  to  a  business 
partnership,  not  through  voluntary  adhesion  to  a  con- 
tractual agreement;  but  he  is  born  a  member  and  becomes 
entitled  to  the  rights  and  subject  to  the  obligations  which  it 
creates,  just  as  he  is  born  into  the  world  of  nature  and  be- 
comes subject  to  the  laws  of  nature  and  to  the  restraints 
imposed  upon  him  through  the  necessities  of  his  very 
existence.  The  obligations  of  allegiance  and  obedience 
do  not  rest  upon  covenant  or  consent,  but  rather  upon  the 
general  interests  or  necessities  of  society,  or  upon  grounds 
of  utility.  We  can  no  more  account  for  them  on  the  basis  of 
consent  than  we  can  account  for  the  obedience  of  the  child 
to  the  parent  on  the  theory  of  compact.  These  relations 
are  independent  of  our  consent,  and  we  enter  into  them  so 
naturally  that  we  do  not  stop  to  inquire  into  their  origin 
or  causes  any  more  than  we  do  about  the  principle  of 
gravity  or  the  operation  of  the  laws  of  nature  in  general.* 
The  theory  of  the  social  compact,  as  the  basis  of  political 
authority,  like  the  theory  of  divine  right,  was  invented  for 
a  specific  purpose,  namely,  to  establish  the  right  of  resist- 
ance upon  the  part  of  subjects  to  sovereigns  whenever  the 
latter  violated  their  obligations  to  the  former.  During 
the  period  of  the  Tudor  and  Stuart  absolutism  in  England, 
when  the  rights  of  the  people  were  recklessly  violated  by 
tyrannical  kings,  the  theory  was  developed  that  as  the 
subject  owed  the  sovereign  obedience,  the  sovereign  in  turn 
was  bound  to  protect  the  subject  and  govern  him  justly. 

*  Cf.  McKechnie,  "The  State  and  the  Individual,"  p.  66. 

*  "If  the  reason  be  asked,"  said  Hume,  "of  that  obedience  which  we  are  bound 
to  pay  to  government,  I  readily  answer,  because  society  could  not  otherwise  exist." 
Essays,  vol.  I,  p.  455. 

POL.  SCI.  —  8 


114 


THE    ORIGIN   OF    THE   STATE 


Element 
of  Truth 
in  the 
Theory 


From  this  the  idea  gradually  spread  that  kings  owed 
their  authority  to  the  people  and  could  be  deposed  by 
them  for  abuse  of  that  authority.  In  short,  the  relation 
between  rulers  and  subjects  came  to  be  regarded  as  con- 
tractual in  character. 

If  the  contract  theory  meant  no  more  than  that  the  rela- 
tion between  rulers  and  subjects  is  one  of  reciprocal  rights 
and  obligations,  of  protection  and  obedience,  we  should 
be  under  the  necessity  of  accepting  it  in  its  entirety.  To 
maintain,  says  McKechnie,  that  "all  men  ought  to  have  a 
share  in  molding  the  form  of  the  constitution  of  a  state 
is  a  logical  and  intelligible  position;  but  to  hold  that  the 
individual  atoms  vote  the  state  itself  into  existence  as  the 
result  of  a  unanimous  plebiscite  is  absurd.  It  is  to  ignore 
the  great  truth  established  for  all  time  by  Aristotle,  that 
man  is  by  nature  a  political  and  social  animal  and  there- 
fore necessarily  the  member  of  some  state,  however  crude. "^ 


Expansion 

of  the 
Family 


V.     THE    PATRIARCHAL   AND    MATRIARCHAL   THEORIES 

"The  patriarchal  theory  of  the  origin  of  political  soci- 
ety," says  J.  F.  McLennan,  one  of  the  most  learned  stu- 
dents of  primitive  social  organization,  "stated  in  its  sim- 
plest form,  represents  society  as  the  enlargement  of  the 
family,  and  the  family  as  a  group  composed  at  first  of  a  man 
and  his  wife  and  children."  ^  With  the  expansion  of  the 
original  family  through  the  marriage  of  the  children  new 
families  are  founded,  but  the  authority  of  the  father  of  the 
first  family,  as  chief  or  patriarch,  is  acknowledged,  so  long  as 
he  lives,  by  the  whole  body  of  descendants,  however  numer- 
ous. In  the  course  of  time  all  the  families  descended  from 
the  original  father,  if  they  hold  together,  form  a  very  large 
group  which  we  may  call  a  tribe.  Withdrawals  from  the 
tribe  and  removal  to  new  territories  constitute  the  nuclei  of 
new  tribes,  and  so  in  the  course  of  time  many  new  tribes 


The  State  and  the  Individual,"  p.  67. 


The  Patriarchal  Theory,"  p.  i. 


THE   PATRIARCHAL   AND   MATRIARCHAL   THEORIES     115 

come  into  existence.  Being  united  by  ties  of  blood,  the 
tribes  naturally  act  together  for  common  purposes,  particu- 
larly in  the  prosecution  of  foreign  war.  In  time  they  estab- 
lish some  common  form  of  authority  and  thus  become  a 
state,  at  first  necessarily  simple  and  rudimentary.  Such 
an  example  was  afforded  by  the  ancient  Jewish  nation, 
founded  by  the  union  of  the  twelve  tribes  made  up  of  the 
descendants  of  Jacob,  the  original  first  father.  In  the 
patriarchal  family  the  element  of  paternity  is  of  course  the 
chief  fact.  Blood  relationship  is  traced  only  through  males, 
and  from  the  same  ancestor;  that  is,  kinship  is  purely 
agnatic.  Furthermore,  the  patria  potestas  of  the  Roman 
law  is  the  basis  of  all  authority,  that  is,  the  father  of  the 
family  controls  all  business,  religious,  and  other  relations 
of  all  descendants,  no  matter  how  numerous. 

The  patriarchal  theory,  observes  McLennan,  "so  simple  Maine  on 
and  natural,  used  to  be  generally  accepted  as  palpably  ^^hai*" 
true,  like  the  fact  of  the  sun  moving  daily  round  the  earth.  Theory 
No  one  thought  of  proving  it  and  but  few  of  seriously 
doubting  it."  ^  Its  most  notable  exponent  and  advocate 
in  the  nineteenth  century  was  the  learned  Sir  Henry  Maine 
in  his  "Ancient  Law"  and  in  his  "Early  History  of  Insti- 
tutions." In  the  former  work  Maine  asserts  that  "the 
effect  of  the  evidence  derived  from  comparative  jurispru- 
dence is  to  establish  that  view  of  the  primeval  condition  of 
the  human  race  which  is  known  as  the  patriarchal  theor}', 
which  is  defined  as  the  theory  of  the  origin  of  society  in  sepa- 
rate families,  held  together  by  the  authority  and  protection 
of  the  eldest  male  descendant."  ^  Regarding  the  genesis 
of  society,  he  says:  "The  elementary  group  is  the  family 
connected  by  common  subjection  to  the  highest  male 
descendant.  The  aggregation  of  families  forms  the  ^en5  or 
house.  The  aggregation  of  houses  makes  the  tribe.  The 
aggregation  of  tribes  constitutes  the  commonwealth."  ^ 

*  Ihid.,  p.  3.  ^  Ibid.,  p.  122. 

'  Ibid.,  p.  1 28.     According  to  Maine,  the  larger  groups  (gentes)  were  sometimes 


Ii6  THE   ORIGIN   OF   THE   STATE 

More  recent  supporters  of  the  patriarchal  theory  are  the 
English  writer  Donisthorpe  and  the  French  writer  Duguit. 
The  very  first  state  that  ever  existed,  says  Donisthorpe,  was 
a  human  family,  consisting  of  a  mother  and  her  offspring. 
The  family,  he  asserts,  is  the  earliest  form  of  state.  In 
course  of  time  families  are  drawn  together  in  little  groups 
and  loosely  compounded  under  a  single  head,  constituting 
the  patriarchal  state,  in  which  the  unit  consists  of  the 
descendants  of  a  living  male  who  exercises  power  over 
them.  The  federation  of  patriarchal  groups  leads  to  the 
clan,  or  house,  having  a  common  name  and  held  together  by 
common  interests.  These  gentes  tend  to  coalesce  until  we 
have  the  tribe  and  eventually  the  nation,  which  organizes 
itself  into  a  state. ^  With  most  people  of  Aryan  or  Semitic 
origin,  says  Duguit,  the  patriarchal  family  has  been  at  some 
time  the  general  form  of  social  group.  The  male  parent,  by 
virtue  of  his  age,  sex,  and  ancestry,  is  recognized  in  primi- 
tive society  as  being  invested  with  a  particular  prestige. 
He  is  the  natural  chief,  the  governor  of  the  little  state  of 
which  the  members  of  the  family  are  the  governed.  The 
ancient  city  was  merely  a  union  of  families  in  which  politi- 
cal power  belonged  to  the  father.^ 

held  together  by  a  supposititious  rather  than  a  real  bond  of  kinship.  In  such  cases 
the  larger  group  was  a  "fictitious  extension  of  the  family."  The  groups  bore  a 
common  name,  regarded  each  other  as  descendants  of  a  common  ancestor,  and  were 
drawn  together  by  religious  ties  and  a  sense  of  certain  mutual  rights  and  obligations. 

^  "Individualism,  a  System  of  Politics,"  p.  7.  A  defense  of  the  patriarchal  theory 
is  made  by  Paley  in  his  "Political  and  Moral  Philosophy"  (bk.  VI,  ch.  i).  It  is  but 
natural,  he  says,  that  the  descendants  of  a  common  progenitor  should  feel  themselves 
allied  to  each  other  in  a  nearer  degree  than  the  rest  of  the  species.  Experiencing 
many  inconveniences  from  the  absence  of  that  authority  which  their  common  ances 
tor  exercised,  especially  in  deciding  their  disputes  and  directing  their  operations  in 
matters  in  which  it  was  necessary  to  act  in  conjunction,  they  might  be  induced  to 
supply  his  place  by  a  formal  choice  of  a  successor;  or  rather  might  willingly  and 
almost  imperceptibly  transfer  their  obedience  to  some  one  of  the  family  who  by  his 
age  or  services  or  by  the  part  he  possessed  in  the  direction  of  their  affairs  during  the 
lifetime  of  the  parent,  had  already  taught  them  to  respect  his  advice  or  to  attend 
to  his  commands. 

^  "Droit  constitutionnel,"  p.  39.  Sidgwick  expresses  the  opinion  that  primitive 
states  are  more  likely  an  aggregate  of  gentes  grouped  into  larger  unions  than  an 


THE   PATRIARCHAL   AND   MATRIARCHAL   THEORIES    117 

In  recent  years  historical  and  sociological  investigation  Criticism 
has  thrown  considerable  doubt  on  the  soundness  of  the  patri! 
patriarchal  theory.  The  theory  lacks  historical  proof  to  ^^^°^ 
substantiate  it.  Among  its  more  notable  critics  are  McLen- 
nan, in  the  work  already  cited,  Morgan,  in  his  "Ancient 
Society,"  and  Edward  Jenks,  in  his  "History  of  Politics." 
These  writers  reject  the  proposition  that  the  family,  related 
only  through  males,  and  ruled  over  by  a  patriarch,  was 
universal  in  ancient  society,  or  even  general.  There  are 
many  examples  of  rude  societies  now  existing,  says  Mc- 
Lennan, in  which  the  family  differs  radically  from  the 
patriarchal  family,  and  there  is  much  evidence  to  show  that 
such  families  existed  in  early  times  before  the  patriarchal 
family.  In  other  words,  according  to  their  theory  the  xheMatri- 
matriarchal  family,  founded  on  kinship  through  females,  JSeorj 
was  the  primary  social  fact.  The  only  direct  historical 
evidence  produced  in  support  of  the  former  theory,  they 
assert,  is  that  the  patriarchal  family  existed  in  early  Rome; 
while  there  is  evidence  on  the  contrary  to  show  that  neither 
the  elements  of  patria  potestas  nor  agnation  existed  in  the 
primitive  Hebrew  family,  nor  in  Greece,  nor  among  the  early 
Germans.  McLennan's  theory  is  that  the  genesis  of  civil 
society  goes  back  of  the  patriarchal  family  to  the  stage  of 
polyandry  and  to  the  matriarchal  family,  the  former  of 
which  subsequently  developed  into  the  monogamous 
family  and  the  latter  into  the  patriarchal  state. ^  The 
same  view  is  held  by  Edward  Jenks,  who  declares  that  the 
theory  that  the  "beginnings  of  society  are  to  be  found  in 
the  single  household  or  group  of  descendants  of  a  living 

aggregate  of  natural  families.  "We  may  assume,"  he  says,  "that  the  earlier  form 
of  political  society  was  a  comparatively  small  group  of  persons  regarding  themselves 
as  kinsmen,"  that  is,  groups  of  persons  organized  on  the  basis  of  real  or  assumed 
kinship,  generally  the  belief  in  a  common  ancestor,  and  it  is  possible  that  in  some 
cases  such  a  society  may  have  been  produced  by  the  expansion  of  a  single  society. 
In  any  case  the  element  of  kinship,  either  real  or  feigned,  was  the  principal  tie  that 
held  together  early  primitive  communities. 
*  "The  Patriarchal  Theory,"  pp.  27,  351,  355. 


Il8  THE   ORIGIN   OF   THE   STATE 

man"  has  been  "exploded."  Recent  discoveries,  he  as- 
serts, have  proved  that  "the  earHest  social  group,  so  far 
from  being  a  small  household  of  a  single  man  and  his  wives, 
is  a  large  and  loosely  connected  group  called  a  pack  or 
horde,  organized  for  matrimonial  purposes  on  a  very  arti- 
ficial plan,  which  altogether  precludes  the  existence  of  a 
single  family.  In  such  a  condition  of  society  promiscuity 
of  sexual  relations  prevails,  and  kinship  is  traced,  not 
through  the  father,  but  through  females.  Likewise,  Jenks 
asserts  that  the  process  by  which  families  expand  into 
clans  and  clans  into  tribes  according  to  Maine's  conception 
is,  in  fact,  the  reverse.  The  tribe  is  the  oldest  as  it  is  the 
primary  group;  in  time  it  breaks  up  into  clans;  these  in 
turn  break  up  into  households  and  ultimately  these  are 
dissolved,  leaving  the  individual  members  to  constitute  the 
units  of  society.^  Examples  of  such  societies  are  found 
among  the  primitive  races  of  Australia,  the  Malay  Archi- 
pelago, and  to  some  extent  among  the  early  Celtic  races  of 
England  and  Scotland. 
Conciu-  Concerning  the  merits  of  the  matriarchal  theory,  we  may 

say,  as  has  been  said  of  the  patriarchal  theory,  that  the 
historical  proof  of  the  universality  of  the  matriarchal  family 
among  primitive  peoples  is  lacking.  Doubtless  both  theories 
account  for  the  genesis  of  particular  state  organizations, 
though  even  then  we  must  take  into  consideration  other 
forces  and  elements  which  enter  into  the  process  of  politi- 
cal organization.  Our  knowledge  of  the  social  institutions 
of  primitive  peoples  in  historic  times  makes  it  impossible 
to  believe  that  either  type  of  family  prevailed  universally 
in  ancient  times,  or  indeed  that  the  state  should  have 
developed  through  the  enlargement  and  expansion  of  either. 
The  family  and  the  state  are  totally  different  in  essence, 

*  "History  of  Politics,"  chs.  i  and  2.  This  is  also  the  view  of  Skene  in  his 
"Celtic  Scotland,"  vol.  III.  Cf.  also  Willoughby's  searching  criticism  in  his  "Na- 
ture of  the  State,"  pp.  19-30,  and  in  his  "Political  Theories  of  the  Ancient 
World,"  ch.  i;  and  Leacock,  "Elements  of  Political  Science,"  pp.  42-46. 


sions 


THE   FORCE   THEORY  119 

organization,  functions,  and  purpose,  and  there  is  little 
reason  to  suppose  that  one  should  have  developed  out  of 
the  other  or  that  there  should  have  been  any  connection 
between  them. 

VI.     THE   FORCE  THEORY 

A  theory  advocated  by  some  writers  is  that  which  attrib-  The 
utes  the  institution  of  the  state  to  compulsion,  as  where  a  of^ForcI 
powerful  individual,  through  sheer  physical  strength  or  in  the 
preeminence  of  leadership,  brings  under  his  subjection 
people  hitherto  unorganized  politically  and  imposes  upon 
them  his  authority.^  Thus  Hume,  in  his  "Original  Con- 
tract," holds  that  the  state  came  into  existence  when  a 
tribal  chieftain  or  other  leader  who  had  acquired  great 
influence  over  his  followers  during  war  maintained  his 
control  over  them  after  the  restoration  of  peace.  At 
first  he  may  have  ruled  by  persuasion  rather  than  by  com- 
mand, until  he  could  employ  force  to  reduce  to  subjection 
the  refractory  and  disobedient.^  Manifest  necessity,  the 
theory  holds,  would  prompt  those  who  fought  on  the  same 
side  to  array  themselves  under  one  leader.  Having  led  his 
followers  to  victory,  he  naturally  enjoyed  a  prestige  and 
wielded  an  influence  that  enabled  him  to  establish  and 
perpetuate  his  control  over  them  in  civil  affairs. 

As  an  explanation  of  how  the  state  originated,  the  force 
theory  has  few  advocates  to-day  among  political  writers; 
yet  as  an  explanation  of  the  basis  of  state  authority  it  is, 
of  course,  largely  correct.  If  it  meant  nothing  more  than 
that  force  and  power  are  the  most  distinctive  characteris- 
tics of  the  state,  in  short,  that  the  state,  unlike  all  other 
associations  of  mankind,  possesses  the  power  to  compel 
obedience  from  its  members,  no  objection  could  be  made  to 
it.  It  undoubtedly  possesses,  as  Bluntschli  remarks,  a 
''residuum  of  truth"  in  the  prominence  which  it  gives  to  an 

'  Cf.  Bluntschli,  "Allgemeine  Staatslehre,"  bk.  IV,  ch.  8. 
-  Essays,  vol.  I,  p.  445. 


I20 


THE   ORIGLN    OF   THE   STATE 


indispensable  element  in  the  constitution  of  the  state 
(Macht),  and  he  might  have  added  it  tends  to  correct  the 
false  impression  often  created  by  the  contract  theory,  that 
political  authority  always  rests  upon  the  voluntary  consent 
of  those  who  are  subject  to  it. 

Force  and  compulsion  have  played  an  important  part  in 
the  consolidation  of  states  and  in  the  erection  of  new  state 
forms/  Some  of  the  greatest  empires  of  to-day  have  been 
established  through  "blood  and  iron,"  and  it  is  not  alto- 
gether improbable  that  we  shall  see  more  of  blood  and  iron 
methods  in  the  future.  In  this  sense,  as  McKechnie  re- 
marks, all  constitutions  and  governments  founded  on  the 
idea  of  authority  are  really  modifications  of  the  theory  of 
force.  ^ 


The  State 
an  Insti- 
tution of 
Growth 


VII.     THE   HISTORICAL   OR   EVOLUTION   THEORY 

We  are  therefore  led  to  the  conclusion  that  the  state  is 
neither  the  handiwork  of  God,  nor  the  result  of  superior 
physical  force,  nor  the  creation  of  resolution  or  convention, 
nor  a  mere  expansion  of  the  family.  Unlike  the  contrivance 
or  agency  through  which  it  manifests  itself  and  which  we 
call  government,  the  state  is  not  a  mere  artificial  mechan- 
ical creation,  but  an  institution  of  natural  growth,  of  his- 
torical evolution.  The  idea  is  well  stated  by  a  high 
authority  as  follows:  "The  proposition  that  the  state  is 
the  product  of  history  means  that  it  is  the  gradual  and 
continuous  development  of  human  society,  out  of  a  grossly 
imperfect  beginning,  through  crude  but  improving  forms 
of  manifestation,  towards  a  perfect  and  universal  organi- 
zation of  mankind.  It  means,  to  go  a  little  deeper  into  the 
psychology  of  the  subject,  that  it  is  the  gradual  realization, 
in  legal  institutions,  of  the  universal  principles  of  human 
nature,  and  the  gradual  subordination  of  the  individual 
side  of  that  nature  to  the  universal  side."  ^    As  Burgess  aptly 

*  Compare  Jellinek,  pp.  185-190.  ^  "The  State  and  the  Individual,"  p.  67. 

'  Burgess,  "Political  Science  and  Constitutional  Law,"  vol.  I,  p.  59. 


THE   HISTORICAL   OR   EVOLUTION   THEORY  121 

remarks,  the  light  of  poHtical  consciousness  did  not  dawn 
upon  men  in  a  state  of  nature  all  at  once,  and  hence  the  de- 
cision to  establish  the  state  could  not  have  been  sudden  and 
deliberate,  as  the  contract  theoiy  presupposes.  The  idea  Genesis 
of  the  state  must  have  required  a  long  period  for  its  de-  g^ate* 
velopment  among  a  people  unaccustomed  to  political  au-  ^^^^ 
thority  and  unacquainted  with  the  nature  and  forms  of 
political  organization.  Political  self-consciousness,  wholly 
lacking  at  first,  in  time  appeared  in  the  minds  of  a  few  of 
the  natural  leaders,  then  it  spread  by  degrees  throughout 
the  mass  of  the  population  and  finally  became  general.  At 
first  the  state  came  into  existence  merely  as  an  idea,  that 
is,  it  appeared  in  a  subjective  form,  without  being  a  physi- 
cal fact.  Before  its  manifestations  could  be  felt  and  its 
ends  realized  it  must  have  an  objective  existence  in  institu- 
tions and  laws.  In  short,  a  constitution  expressing  the 
collective  will  must  be  created  and  then  a  magistracy  must 
be  established  in  accordance  with  the  constitution.  His- 
torically, this  marks  the  starting  point  for  the  state,  but 
for  political  philosophy  it  is  but  an  episode,  a  stage  of 
development,  in  the  transition  from  natural  to  civil  society. 
"The  solemn  adoption  by  a  people,"  says  an  able  writer, 
"of  such  a  fundamental  instrument  is  but  the  act  through 
which  that  v/hich  has  formerly  existed  in  a  more  or  less 
undefined  and  vague  state  is  brought  into  a  definite  and 
positive  state."  ^  The  state  exists  in  subjective  form  as 
soon  as  the  common  consciousness  reaches  that  stage  of 
development  from  which  we  may  date  the  beginning  of  the 
movement  which  culminates  in  the  formal  institution  of 
political  authority.  This  point  may  in  fact  be  reached  long 
before  the  state  is  known  and  understood.  The  clothing 
of  the  state  with  the  external  forms  of  organization  is  not 
the  final  stage  in  the  process,  for  the  simple  and  rudimen- 
tary character  which  it  takes  in  the  beginning  must  go  on 
developing  and  expanding  as  the    political  consciousness 

^  Willoughby,  "Nature  of  the  State,"  p.  130. 


122  THE   ORIGIN   OF   THE   STATE 

Spreads  among  the  masses  of  the  people.  With  advancing 
civilization  it  tends  to  become  more  complex  in  form,  more 
universal  in  its  range  of  activities,  more  indispensable  to 
the  needs  of  mankind.  But  it  never  attains  its  final  and 
complete  development. 

Rightly  understood,  all  of  the  best  elements  in  the  sev- 
eral theories  discussed  above  enter  into  the  historical  the- 
ory. The  divine  element  appears  in  the  fact  that  the  Cre- 
ator has  implanted  in  the  human  breast  the  impulse  which 
leads  to  association,  and  in  the  part  played  by  religion  in 
bringing  primitive  man  out  of  barbarism  and  accustoming 
him  to  law  and  authority.  The  element  of  compulsion  exer- 
cised by  those  who  possess  natural  superiority  is  a  powerful 
ally  of  both  religion  and  evolution  in  bringing  the  natural 
man  into  political  and  social  relationship  with  his  fellows. 
Finally,  the  elements  of  contract  and  consent  which  lie 
at  the  basis  of  all  association  play  an  important  part  in  the 
process  of  establishing  and  reorganizing  particular  gov- 
ernments. No  one  of  these  elements  alone  accounts  for 
the  existence  of  the  state,  but  all  working  together,  some 
more  prominently  than  others;  and  all,  aided  by  the  forces 
of  history  and  the  natural  tendencies  of  mankind,  enter 
into  the  process  by  which  uncivilized  peoples  are  brought 
out  of  anarchy  and  subjected  to  the  authority  of  the  state. 


CHAPTER   V 

FORMS  OF  STATE  AND  ASSOCIATIONS  OF 

STATES 

Suggested  Readings :  Batbie,  "Traite  de  Droit  public  et  adminis- 
tratif,"vol.I,pp.  158-194;  Bluntschli,  "AUgemeine  Staatslehre,"  bk. 
IV,  ch.  3;  bk.  VI,  chs.  1-7  and  24;  also  "  AUgemeines  Staatsrecht," 
bk.  Ill,  chs.  I  and  2,  and  his  "  Psychologische  Studien  iiber  Staat  und 
Kirche,"  pp.  231-291;  Bonfils,  "Droit  international  public,"  bk,  I, 
ch.  i;  Brie,  "Der  Bundesstaat,"  Introduction  and  sees.  8-12;  Bur- 
gess, "Political  Science  and  Constitutional  Law,"  vol.  I,  bk.  II,  ch,  3; 
Calvo,  "  Droit  international  public,"  vol.  I,  bk.  II;  Carnazza-Amari, 
"Traite  de  Droit  international  public,"  vol.  I,  pp.  259-321;  Dahl- 
MANN,  "Politik,"  pp.  13-20;  Despagnet,  "  Cours  de  Droit  inter- 
national public,"  pp.  84-178;  Esmein,  "Droit  constitutionnel,"  In- 
troduction; Freeman,  "History  of  Federal  Government,"  chs.  i  and  2; 
Gareis,  "  AUgemeine  Staatslehre,"  in  Marquardsen's  "  Handbuch," 
vol.  I,  pp.  101-115;  GuMPLOWicz,  "Allgemeines  Staatsrecht,"  pt.  II, 
ch.  7;  Hall,  "International  Law,"  pt.  I,  ch.  i;  Hart,  "Federal 
Government,"  chs.  1-5;  Held,  "  Staatsrecht,"  pp.  320-331;  Huhn, 
"Politik,"  ch,  3;  Jellinek,  "Recht  des  modernen  Staates,"  bk.  II, 
ch.  20;  also  his  "Lehre  von  den  Staatenverbindungen,"  Le  Fur, 
"L'Etat  federal";  Le  Fur  und  Posener,  "Bundesstaat  und 
Staatenbund";  Lewis,  "  Use  and  Abuse  of  Political  Terms,"  pp.  58- 
67;  Meyer,  "  Deutsches  Staatsrecht,"  sees.  3-4,  9-12;  Von  Mohl, 
" Encyklopadie  der  Staatswissenschaften,"  sees.  40-50;  Oppenheim, 
"International  Law,"  pt.  I,  ch.  i;  Posado,  "Tratado  de  Derecho 
Politico,"  bk.  VII,  chs.  2  and  3;  Pradier-Fodere,  "  Traite  de  Droit 
international  public,"  vol.  I,  ch.  2;  Rehm,  "AUgemeine  Staatslehre," 
sees.  17-23;  RiviER,  "Principes  du  Droit  des  Gens,"  vol.  I,  bk.  II; 
Schmidt,  "Der  Staat,"  sees.  13-15;  Schulze,  "Deutsches  Staats- 
recht," vol.  I,  bk.  I,  chs.  T,  and  4;  Seeley,  "Introduction  to  Political 
Science,"  lects.  II,  VI,  VII,  VIII;  Treitschke,  "Politik,"  vol.  II, 
sees.  13-22;  Waitz,  "Grundziige  der  Politik,"  pp.  35-42;  Wester- 
kamp,  "Staatenbund  und  Bundestaat,"  sees.  7-13;  Willoughby, 
"The  Nature  of  the  State,"  ch.  10;  Woolsey,  "Political  Science," 
vol.  II,  pt.  Ill,  chs.  7-8;  Zacharia,  "  Vierzig  Biicher  vom  Staate," 
vol.  Ill,  bks.  16-19. 

I2J 


124     FORMS   OF    STATE    AND    ASSOCIATIONS   OF    STATES 


Points  of 
View  from 
which 
States 
may  be 
classified 


I.     PRINCIPLES   OF   CLASSIFICATION 

So  far  as  their  legal  nature  and  their  fundamental  pur- 
poses are  concerned,  all  states  are  essentially  alike  and 
permit  of  little  or  no  differentiation.  In  other  respects, 
however,  they  possess  elements  of  difference,  like  objects 
of  nature,  and  may  be  classified  from  various  points  of  view. 
Thus,  as  regards  the  form  of  their  constitutions,  their 
governmental  organizations,  their  territorial  area,  the  ex- 
tent of  their  resources,  the  degree  of  influence  which  they 
exert  in  the  political  affairs  of  the  world,  etc.,  they  present 
a  multitudinous  variety  of  types. ^  From  the  viewpoint 
of  territorial  area  the  types  range  all  the  way  from  petty 
principalities  to  vast  empires  embracing  as  much  as  one 
eighth  of  the  earth's  surface.  From  the  standpoint  of 
their  military  and  naval  strength  and  of  their  influence  in 
international  relations  they  may  be  classified  as  the  "great 
powers"  and  the  "lesser  powers,"  though  legally  they  all 
stand  on  a  footing  of  equality.^ 

In  a  treatise  on  political  science,  however,  classifications 
based  on  territorial  area,  population,  resources,  and  simi- 
lar characteristics  have  little  value.  Such  classifications, 
for  example,  as  agricultural,  commercial,  and  industrial 
states  have  no  more  interest  for  the  political  scientist  than 
a  classification  of  animals  on  the  basis  of  size,  strength,  or 
color  has  for  the  natural  scientist.^  For  our  purpose,  the 
basis  of  classification  must  be  some  scientific  principle, 
some  juristic  or  political  characteristic,  which  will  serve  to 
distinguish  states  in  their  essence  and  fundamental  consti- 
tution. 

*  For  an  exhaustive  classification  of  the  multifarious  forms  of  states  by  numerous 
writers  see  Jellinek,  "Recht  des  mod.  Staates,"  p.  646,  n.  i. 

'  A  few  writers  come  pretty  near  to  attributing  to  the  "Great  Powers"  a  legal  as 
well  as  a  political  superiority,  inasmuch  as  these  states  exercise  in  fact  a  "primacy" 
or  "overlordship"  over  the  smaller  states  — a  supremacy  often  recognized  in  interna- 
tional conventions.  See  Oppenheim,  "International  Law,"  vol.  I,  p.  164;  and 
Lawrence,  "Principles  of  International  Law,"  sees.  134-135. 

'  Compare  Jellinek,  p.  647. 


MONARCHIES,  ARISTOCRACIES,  AND  DEMOCRACIES    125 

Two  such  principles  or  bases  of  classification  have  com-  Principles 
mended  themselves  to  writers  on  political  science.  They  gcftion  ' 
are:  first,  the  form  of  governmental  organization  through 
which  the  state  manifests  itself;  and  second,  the  number  of 
persons  in  whom  the  sovereign  power  of  the  state  rests. 
Classification  on  the  basis  of  forms  of  government  has  been 
a  favorite,  if  not  the  accepted,  principle  among  political 
writers;  but  it  is  open  to  the  objection  of  being  unscientific 
and,  to  some  extent,  illogical.  To  classify  states  on  the 
basis  of  the  nature  and  forms  of  their  governments  is  very 
much  like  classifying  railroads,  for  example,  with  respect 
to  the  organization  of  their  boards  of  directors.  Such  a 
classification  in  its  last  analysis  is  nothing  more  than  a 
classification  of  governments,  not  a  classification  of  states. 
Strict  logic,  therefore,  would  seem  to  require  an  observance 
of  the  distinction  between  states  and  their  governments, 
and  a  classification  of  each  on  the  basis  of  some  distinctive 
characteristic  of  its  own.  Much  confusion  and  misconcep- 
tion have  resulted  from  the  failure  to  observe  this  impor- 
tant distinction.  In  this  work,  we  shall,  as  far  as  possible, 
observe  the  distinction  and  shall  consider  first  the  forms 
of  state. 

II.     MONARCHIES,    ARISTOCRACIES,    AND   DEMOCRACIES 

On  the  basis  of  the  number  of  persons  in  whom  the  According 
sovereign  power  is  vested  states  may  be  classified  as  mon-  *°  p"™on" 
archies,  aristocracies,  and  democracies.     A  monarchy  is  a  in  whom 
state  directed  by  a  single  supreme  will;  *  an  aristocracy  is  eignty re- 
one  in  which  the  exercise  of  sovereignty^  resides  in  a  com-  ^^^^^ 
paratively  small  number  of  persons;  while  a  democracy  is 
one  in  which  the  exercise  of  sovereignty  rests  with  the 
mass  of  the  population.     This  was  the  famous  classification 

^  Jellinek,  "Recht  des  mod.  Staates,"  p.  653;  Treitschke,  "Politik,"  vol.  II,  p.  53; 
and  Meyer,  "  Deutsches  Staatsrecht,"  sec.  9.  A  monarchy,  says  Pradier-Fodere 
("Principes  generaux  de  Droit  de  Politique,"  etc.,  p.  242),  is  a  state  in  which  a 
single  person,  generally  called  a  king  or  emperor,  exercises  sovereignty  in  the  name 
of  and  by  delegation,  express  or  implied,  of  the  nation. 


126     FORMS   OF   STATE   AND   ASSOCIATIONS   OF   STATES- 

of  Aristotle  and  in  substance  it  was  adopted  by  Cicero, 
Polybius,  and  other  ancient  political  writers.^  In  his  "  Poli- 
tics" Aristotle,  apparently  without  distinguishing  between 
state  and  government,  said :  "We  usually  call  a  state  which 
is  governed  by  one  person  for  the  common  good,  a  mon- 
archy; one  that  is  governed  by  more  than  one,  but  by  a 
few  only,  an  aristocracy.  .  .  .  When  the  citizens  at  large 
govern  for  the  public  good  it  is  called  a  polity,  which  is 
also  a  common  name  for  all  other  governments."  ^  Aris- 
totle further  subdivided  each  of  the  above  forms  on  the 
basis  of  the  manner  or  motive  according  to  which  the  sov- 
ereignty was  exercised.  Thus,  according  to  him,  there 
were  three  pure  or  normal  forms  and  three  corrupt  or 
abnormal  types. 
Pure  or  In  a  pure  monarchy  the  power  of  the  state  is  completely 

Monarchy  identified  with  the  person  of  the  individual  who  is  the 
bearer  of  the  sovereignty;  he  is  not  sovereign  one  moment 
and  subject  the  next;  he  is  always  the  state.  The  old 
Roman  maxim,  Quod  principi  placuit  legis  hahet  vigorem, 
and  the  more  modern  French  proverb.  Qui  veut  le  roi,  si 
veut  la  lot,  fully  describe  the  attributes  of  a  real  monarch. 

'Aristotle,  "Politics,"  III,  7;  "Ethics,"  VIII,  12;  Cicero,  "De  Republica,"  I, 
26;  Polybius,  "History  of  Rome,"  VI,  3. 

^Willoughby,  "Political  Theories  of  the  Ancient  World,"  p.  171.  Schulze, 
Treitschke,  and  Meyer,  well-known  German  scholars,  regard  aristocracies  and 
democracies  as  special  forms  of  a  republic.  There  is  no  fundamental  difference 
between  an  aristocracy  and  a  democracy,  they  maintain,  the  only  distinction  being 
one  of  degree.  Schulze,  "Deutsches  Staatsrecht,"  vol.  I,  p.  32;  Treitschke, 
"Politik,"  vol.  II,  pp.  5  ff.  Treitschke  maintains  that  the  difference  between  a 
monarchy  and  a  republic  is  this :  a  monarchy  is  a  form  of  state  in  which  a  single 
individual  rules  as  of  right;  a  republic  is  one  in  which  one  or  more  individuals  rule, 
not  as  of  right,  but  in  virtue  of  delegated  power.  The  test  is  not,  he  says,  whether 
one  or  more  are  vested  with  the  sovereign  power,  but  whether  the  power  is  exercised 
of  right  or  by  delegation.  Somewhat  the  same  view  is  held  by  Jellinek,  who  main- 
tains that  all  non-monarchical  states  are  in  reality  republics,  the  distinction  being 
merely  quantitative  rather  than  qualitative.  Aristocracies,  oligarchies,  democracies, 
and  timocracies  should  in  strict  logic,  therefore,  be  grouped  under  the  head  of 
republics.  In  this  case  we  should  have  aristocratic  republics,  oligarchic  republics, 
democratic  republics,  etc.     "Recht  des  mod.  Staates,"  p.  694. 


tion 


MONARCHIES,  ARISTOCRACIES,  AND  DEMOCRACIES     127 

In  strictness  there  can  be  no  such  thing  as  a  Hmited  mo- 
narchical state,  for  all  states  are  legally  absolute  and  un- 
limited. There  may,  however,  be  limited  monarchical 
governments.  The  so-called  limited  monarchical  state 
is  in  fact  a  democratic  or  aristocratic  state  having  a  con- 
stitutional government  in  which  the  executive  power  is 
vested  in  a  monarch. 

The   Aristotelian   classification   has   been   criticised    on  Criticism 
several  grounds.     In  the  first  place,  the  classification,  it  is  teiian 
said,  does  not  rest  on  any  organic  fundamental  principle,  ^|^^^''^**' 
but  upon  mere  numbers  and  hence  is  mechanical  rather 
than    spiritual,    quantitative    rather    than    qualitative   in 
character.^     The   answer   which    has   been    made   to   this 
criticism  is  that  the  number  of  ruling  persons  may  indicate 
the  degree  to  which  political  self-consciousness  has  spread 
among  the  population  and  hence  the  capacity  of  the  people 
for    self-government.^     Professor    Seeley    criticised    Aris- 
totle's classification  on  the  ground   that  it  was  scarcely 
applicable  to  the  states  with  which  we  have  to  deal  to-day. 
In  view  of  the  "marvelous  difference"  between  the  "coun- 
try states"  of  the  present  and  the  city  states  of  Aristotle's 
day,  said  Seeley,  they  cannot  be  placed  in  the  same  class.' 

•  This  is  the  criticism,  for  example,  of  Von  Mohl  in  his  "Encyklopadie  der  Staats- 
wissenschaften,"  p.  in. 

^Compare  Burgess,  "Political  Science  and  Constitutional  Law,"  vol.  I,  p.  73. 
The  German  writer  Schleiermacher,  in  his  "Idea  of  the  Different  Forms  of  State" 
("Uber  die  BegrifFe  der  verschiedenen  Staatsformen"),  published  in  1814,  recog- 
nized the  value  of  this  principle  in  his  attempt  to  classify  states  on  the  basis  of  the  differ- 
ent stages  in  the  development  of  the  political  consciousness  of  the  people.  If  this 
consciousness  was  widely  diffused  among  the  masses  of  the  people,  then  the  state 
was  a  democracy;  if  it  had  taken  possession  only  of  a  minority  of  the  population, 
it  was  an  aristocracy,  and  so  on.  A  somewhat  similar  principle  lay  at  the  basis  of 
Rohmer's  classification,  which  was  based  on  the  four  stages  of  party  development. 
See  his  "Lehre  von  den  politischen  Parteien,"  sec.  219  ff. 

*  "Introduction  to  Political  Science,  "  lect.  II.  For  further  criticism  see  Blunt- 
schli,  "  Psychologische  Studien  iiber  Staat  und  Kirche,"  pp.  234-242;  Sidgwick, 
"Elements  of  Politics,"  ch.  30;  Lewis,  "Use  and  Abuse  of  Political  Terms,"  sub 
verba  "Monarchy";  Willoughby,  "Nature  of  the  State,"  pp.  362  flf.;  and  Dunning, 
"Politics  of  Aristotle,"  in  the  "  Political  Science  Quarterly,"  vol.  XV. 


128      FORMS   OF   STATE   AND    ASSOCIATIONS   OF    STATES 

In  essence,  however,  the  states  of  antiquity  were  not  differ- 
ent from  those  of  to-day,  though  of  course  there  was  a  wide 
difference  in  the  form  and  character  of  their  governments. 
Again,  it  is  objected  that  since  there  are  practically  no 
civilized  states  to-day  in  which  actual  sovereignty,  political 
as  well  as  legal,  is  reposed  in  a  single  person  or  a  small 
class,  the  classification  of  states  on  the  basis  of  the  location 
of  sovereignty  is  practically  worthless.  Furthermore,  the 
attempt  to  distinguish  between  aristocracies  and  democ- 
racies must  inevitably  lead  to  hair-splitting,  since  there 
is  no  fixed  criterion  for  determining  where  the  one  ends 
and  the  other  begins.  Moreover,  a  practical  difficulty 
is  encountered  when  we  attempt  to  apply  such  a 
principle  of  classification  to  a  state  like  Great  Britain, 
where  the  legal  sovereignty  is  in  the  legislature,  and  the 
political  sovereignty  is  in  the  electorate.  On  the  former 
basis  England  would  have  to  be  classed  as  an  aristocratic 
state;  on  the  latter  as  a  democratic  state,  though  it  is 
officially  and  popularly  styled  a  monarchy.  But  if  the 
Aristotelian  classification  be  confined  to  its  original  mean- 
ing, the  objections  will  not  appear  so  well  founded  as  they 
seem.  Most  of  the  confusion  has  arisen  from  the  failure 
to  discriminate  between  forms  of  state  and  forms  of  gov- 
ernment, and  from  the  practice  of  treating  as  monarchies  all 
states  that  have  hereditary  executives,  however  democratic 
they  may  be  otherwise.  Such  usage  puts  into  the  same 
class  states  as  widely  different  as  Great  Britain  and  Tur- 
key, and  in  different  classes  those  so  nearly  alike  as  Great 
Britain  and  the  United  States.  If  rightly  applied,  the 
Aristotelian  principle  will  not  produce  any  such  absurd 
classifications. 

III.     THEOCRACIES 

The  Pure  The  so-called  theocratic  state  is  one  in  which  the  ultimate 
Limited  Sovereignty  is  attributed  to  some  superhuman  or  spiritual 
Theocracy  being.     German  writers  on  the  state  generally  distinguish 


THEOCRACIES  129 

between  two  types  of  theocracy,  the  pure  form  and  the  dual- 
istic  or  limited  form.  The  pure  theocracy  is  one  in  which  the 
supernatural  person  to  whom  the  sovereignty  is  attributed 
is  alleged  to  rule  directly  and  immediately  without  the 
aid  of  human  intermediaries.  The  limited  or  dualistic 
theocracy  is  described  as  one  in  which  the  immediate  ruler 
is  not  God,  but  a  human  king  who  rules  as  his  vicegerent 
and  acts  as  the  interpreter  of  the  divine  will,  which  is  made 
known  to  him  by  revelation.  He  is  guided  and  directed 
by  God,  to  whom  alone  he  is  responsible.  In  the  dualistic 
theocracy  there  is  a  separation  between  religious  and  civil 
affairs,  each  being  administered  by  different  authorities. 
The  pure  theocracy  belongs  to  the  most  primitive  stage  of 
society;  the  dualistic  type  to  a  later,  though  still  somewhat 
undeveloped,  stage. 

Bluntschli  gives  as  examples  of  pure  theocracies  Ethiopia, 
ancient  Egypt,  Persia,  and  the  kingdom  of  the  Jews.* 
To  this  list  Von  Mohl  adds  ancient  Mexico  and  Peru.^ 
The  Mohammedan  states  of  the  Middle  Ages  were  also 
largely  theocratic  in  character.  Mohammed  considered 
himself  the  vicegerent  of  God,  and  the  Koran  contained 
the  law  and  jurisprudence  by  which  his  people  were  gov- 
erned. The  caliph  was  both  emperor  and  pope,  and  reli- 
gious and  temporal  affairs  were  not  clearly  differentiated 
from  one  another.  Other  states  of  Europe  until  compara- 
tively recent  times  possessed  theocratic  elements;  and,  as 
is  well,  known,  some  of  the  early  communities  of  North 
America  were  founded  on  a  religious  basis. ^ 

^  "AllgemeineStaatslehre,"  vol.  I,  bk.  VI,  ch.  6.  For  further  accounts  of  the  theo- 
cratic state  see  Von  Mohl,  "Encyklopadie,"  pp.  104-105,  113  ff. ;  Jellinek,  "Recht  des 
mod.  Staates,"  pp.  180  flF. ;  Duguit,  "Droit  constitutionnel,"  pp.  21-25;  Waitz, 
"  Grundziige  der  Politik,"  pp.  36-42;  Willoughby,  "Nature  of  the  State,"  pp. 
42-53;  Woolsey,  "PoHtical  Science,"  vol.  I,  pp.  196-198,  497-500;  Batbie,  "Traite 
de  Droit  public  et  administratif,"  vol.  I,  ch.  43. 

*  "Encyklopadie,"  p.  319. 

^  Such  was  the  New  Haven  colony,  where  membership  in  the  body  politic  was 
restricted  to  church  members  "whose  lives  successfully  bore  the  test  of  the  most 
rigid  scrutiny."  The  church  was  the  "cornerstone  of  the  political  edifice;"  and  the 
POL.  SCI.  —  9 


130 


FORMS   OF   STATE   AND   ASSOCIATIONS   OF   STATES 


Influence 
of  Theo- 
cratic 
Elements 
in  Early 
Societies 


The  so-called  theocracy  was  one  of  the  most  common 
forms  of  primitive  state  organization  and  was  well  adapted 
to  the  infancy  of  political  communities,  since  religion  is 
the  most  powerful  agency  for  organizing  and  fixing  to  the 
soil  wandering,  barbaric  tribes,  inculcating  in  them  respect 
for  authority  and  placing  them  in  a  position  of  receptivity 
for  civilization.  It  was  religious  influences  that  led  the 
Teutons  along  the  path  of  civilization  and  brought  them 
under  the  yoke  of  law,  that  lay  behind  the  political  organi- 
zation of  western  Europe  by  the  Carolingians,  that  pro- 
moted the  organization  of  the  scattered  tribes  of  Russia 
into  a  state;  and  it  is  to-day  very  largely  the  power  which 
secures  the  attachment  and  loyalty  of  the  masses  to  the 
Russian  throne.  In  the  same  way  it  was  Mohammedan- 
ism that  wrought  the  feeble  states  of  Islam  into  a  mighty 
state  organization,  which  founded  populous  cities  and  over- 
threw empires.  It  would  be  easy  to  show  that  the  English 
state  had  its  roots  in  the  church.  For  a  long  time  the  alli- 
ance between  church  and  state  was  the  main  support  of 
the  state;  indeed  down  to  the  reign  of  Anne,  says  Seeley, 
the  English  church  was  the  English  state  in  a  certain  sense. 
For  many  centuries  the  church  continued  to  exercise  a  wide 
degree  of  civil  jurisdiction,  and  churchmen  enjoyed  equal 
authority  with  the  officials  of  the  state  in  the  performance 


Holy  Scriptures  became  the  code  for  the  government  of  the  community  through  the 
adoption  of  a  resolution  "that  thewordeof  God  shall  betheonely  rule  to  be  attended 
unto  in  ordering  the  affayres  of  government  in  this  plantation."  Osgood,  "The 
American  Colonies  in  the  Seventeenth  Century,"  vol.  I,  p.  323.  To  a  less  extent  the 
colonies  of  Massachusetts  and  Plymouth  had  at  first  a  theocratic  character.  Calvin's 
"Institutes  of  the  Christian  Religion"  was  the  chief  political  as  well  as  the  chief 
religious  text-book  of  the  Puritans.  Their  politics  were  largely  colored  by  its  teach* 
ings,  and  there  existed  an  organic  connection  between  church  and  state.  It  was  the 
duty  of  the  church,  says  Osgood  (ibid.,  pp.  201-202),  to  create  a  perfect  Christian 
society  and  the  duty  of  the  state  to  furnish  the  necessary  external  conditions.  They 
accepted  Calvin's  doctrine  that  lawful  magistrates  are  divinely  commissioned  and 
their  work  a  part  of  the  plan  of  Providence,  and  that  it  is  the  duty  of  the  state  to 
punish  idolatry,  blasphemy,  and  other  offenses  against  religion.  In  the  Southern 
colonies  the  clergy  exerted  a  less  powerful  influence  in  public  affairs. 


THEOCRACIES  131 

of  the  various  secular  functions.^  But  as  time  passed  the 
state  everywhere  tended  to  become  more  and  more  secu- 
larized, came  to  lean  less  upon  the  support  of  the  church, 
and  finally  was  able  to  support  itself  without  religious 
props.^ 

"Theocracies  and  despotisms,"  observes  an  able  writer, 
"have  their  place  in  the  historical  development  of  the 
state;  and  their  work  is  as  indispensable  in  the  production 
of  political  civilization  as  is  that  of  any  other  form  of 
organization.  We  have  not  done  with  them  yet,  either. 
The  need  of  them  repeats  itself  wherever  and  whenever  a 
population  is  to  be  dragged  out  of  barbarism  up  to  the 
lowest  plane  of  civilization."  ^  Juridically,  however,  the 
theocracy  is  not  a  distinct  form  of  state,  but  is  either  a 
form  of  monarchy  or  aristocracy.^  The  sovereignty  may  be 
imputed  to  God  or  some  other  extramundane  power,  but 
the  fact  remains  that  whoever,  whether  priest  or  prophet, 
in  the  final  analysis,  interprets  the  will  of  this  supernatural 
authority  and  enforces  its  commands,  is,  so  far  as  political 
science  and  constitutional  law  are  concerned,  the  actual  legal 
sovereign.  Ultimately  God  may  be  the  ruler  and  source  of 
authority,  but  his  power  must  be  humanly  interpreted,  made 
known,  and  immediately  exercised  through  human  agencies. 
The  so-called  theocratic  state  must,  therefore,  according  to 
the  basis  of  classification  which  we  have  laid  down  as  the 
correct  one,  be  either  a  monarchy  or  an  aristocracy. 

^  In  England  down  to  1857  the  ecclesiastical  courts  had  jurisdiction  of  such  mat- 
ters as  marriage  and  divorce,  wills,  the  care  of  minors  and  orphans,  etc. 

^  Cf .  Seeley,  "  Introduction  to  Political  Science,"  lect.  II. 

^  Burgess,  "Political  Science  and  Constitutional  Law,"  vol.  I,  pp.  60-61. 

■*  Bluntschli,  however,  maintains  that  the  theocracy  is  neither  a  form  of  monarchy, 
aristocracy,  nor  democracy,  but  that  it  belongs  to  another  fundamental  type  which 
he  designates  as  Ideokratie.  In  a  theocracy,  says  Bluntschli,  the  real  rulers  are 
men  conceived  of  as  spiritual  beings  rather  than  as  human  personalities.  "  Psy- 
chologische  Studien  uber  Staat  und  Kirche,"  p.  238.  See  also  Von  Mohl,  "  En- 
cyklopadie  der  Staatswissenschaften,"  p.  104;  and  Leo,  "  Naturlehre  des  Staates." 


132    FORMS   OF    STATE   AND   ASSOCIATIONS   OF   STATES 


IV.     OTHER   CLASSIFICATIONS 

Many  attempts  have  been  made  by  later  writers  to  im- 
prove on  Aristotle's  classification. 

Thus,  Machiavelli  and  Montesquieu  classified  states  as 
monarchies  and  republics,  and  this  classification  has  been 
followed  by  a  number  of  recent  scholars.^  The  German 
scholar  Waitz  classified  states  as  republics,  theocracies, 
kingdoms,  unitary  states,  composite  or  compound  states 
(Gesammtestaaten) ,  federal  states,  and  confederations.^ 
Von  Haller  classified  them  as  principalities  and  free 
communities,  the  latter  being  subdivided  into  patri- 
monial states,  priestly  states,  and  military  states.  Gareis, 
a  more  recent  German  writer  on  political  science, 
recognizes  two  general  types  of  state:  the  unitary  state 
{Einheitsstaat)  and  the  composite  state  {Staatenstaat) .  The 
first  is  the  simplest  form  of  state,  though  it  may  be  divided 
for  convenience  of  administration  into  provinces,  districts, 
etc.,  having  little  or  no  local  autonomy.  The  composite 
state  is  one  composed  of  communities  which  themselves 
have  certain  of  the  characteristics  of  states.  Composite 
states,  says  Gareis,  are  of  three  kinds:  real  unions,  federal 
unions,  and  confederations.^  This  classification  is  fol- 
lowed by  many  writers,  especially  those  on  international 
law.  Pradier-Fodere,  a  noted  French  publicist,  classified 
states  as  separate  or  independent  and  as  united.  •  The 
first  class  he  subdivided  into  (a)  personal  unions,  {h) 
real    unions,    (c)    incorporate    unions.     The  second  group 

^  Notably  by  Schulze,  Treitschke,  Georg  Meyer,  Sir  George  Cornwall  Lewis,  and 
Frederick  Martens.  Treitschke  also  enumerates  the  Cultiirstaat  among  the  forms 
of  state.  "Politik,"  Vvol.  I,  p.  81.  Bluntschli  considers  Montesquieu's  classification 
to  be  a  distinct  improvement  upon  that  of  Aristotle,  for  the  reason  that  it  is  not 
based  merely  on  numbers  but  on  a  spiritual  or  moral  principle,  namely,  virtue 
and  moderation.     Op.  cit.,  bk.  VI,  ch.  4. 

°  "Grundziigeder  Politik,"  pp.  36-42. 

^"Allgemeine  Staatslehre,"  in  Marquardsen's  "Handbuch  des  offentlichen 
Rechts,"  vol.  I,  sec.  38. 


OTHER  CLASSIFICATIONS  133 

he  subdivided  into  (a)  confederate   states  and  (6)  federal 
states/ 

One  of  the  most  distinguished  German  writers,  Robert  Von 
von  Mohl,  in  his  "Encyclopedia  of  the  Political  Sciences,"  ciassiL 
written  about  the  middle  of  the  nineteenth  century,  attempted  cation 
a  most  elaborate  classification  of  states,  though  without 
reference  to  any  single  consistent  principle  or  criterion. 
His  classification  was  as  follows:  first,  patriarchal  states; 
second,  theocracies,  or  those  which  have  a  religious  pur- 
pose and  which  are  under  the  guidance  and  direction  of  a 
supernatural  power;  third,  patrimonial  states;^  fourth, 
classic  or  antique  states,  such  as  those  of  early  Greece  and 
Rome;  fifth,  legal  states  {Rechtsstaaten) ,  or  those  whose 
sphere  of  action  is  determined  by  law  and  whose  activites 
are  regulated  by  legal  norms  ;^  and  sixth,  despotic  states,  or 
those  which  are  ruled  without  regard  to  the  prescriptions  of 
law.  Von  Mohl  recognized  also  a  form  which  he  called  the 
military  vassal  state,  and  he  subdivided  classic  states  into 
monarchies,  aristocracies,  and  democracies/  An  examina- 
tion of  Von  Mohl's  classification  will  show,  as  has  been 
said,   that  it  is  based  upon  no  single  logical  or  scientific 

*  "Traite  de  Droit  international  public,"  vol.  I,  p.  215.  Ch.  2  of  this  work  con- 
tains a  good  discussion  of  the  forms  of  state. 

^  A  patrimonial  state  is  one  in  which  not  only  the  political  sovereignty  but  also  the 
ownership  of  the  land  embraced  within  the  territorial  limits  of  the  state  is  attributed 
to  the  ruler.  That  is,  the  king  not  only  exercises  sovereignty  over  the  land,  but  do- 
minion also;  he  is  not  only  ruler,  but  proprietor.  The  idea  of  such  a  relation  is 
frequently  referred  to  in  the  literature  of  antiquity ;  it  occupied  an  important  place  in 
early  Germanic  law,  and  in  a  sense  was  the  basis  of  the  feudal  system.  The  patri- 
monial state  was  recognized  by  the  early  writers  on  international  law,  Grotius,  Pufen- 
dorf,  Wolf,  and  others.  See  Jellinek,  0/).  cit.,  s.  192-194;  also  Merriam,  "History 
of  Sovereignty,"  ch.  4. 

^  The  Rechtsstaat  is  a  form  of  state  concerning  which  the  German  writers  have 
written  much.  See,  e.g.,  Gneist,  "  Der  Rechtsstaat, "  especially  ch.  4.  Gneist  defines 
the  Rechtsstaat  as  the  "  Organismus  welcher  der  zerfahrenen  Lehre  der  heiitigen  Gesell- 
schaft  die  Grtmdlage  der  hilrgerlichen  Freiheit  zu  geben  vermag";  Bahr,  "Der 
Rechtsstaat,"  sees.  4-5;  Maurus,  "Der  moderne  Verfassungsstaat  als  Rechsstaat, " 
sspecially  pp.  59-110;  Gumplowicz,  "Rechtsstaat  und  Socialismus." 

*  "  Encyklopadie  der  Staatswissenschaften,"  sees.  15,  43,  44,  47,  48,  50. 


134      FORMS   OF    STATE    AND    ASSOCIATIONS   OF    STATES 

principle.  Some  of  the  forms  which  he  enumerates  over- 
lap one  another,  while  others  are  whojly  inapplicable  to  the 
states  of  the  present  day.  Thus,  the  patriarchal  state  is 
at  the  same  time  a  monarchy  and  so  is  the  theocracy,  the 
despotism,  and  the  patrimonial  state.  Moreover,  all  states 
are  despotic  in  the  purely  legal  sense,  and  all  states  are 
legal  states  in  the  sense  that  they  are  the  source  of  law  and 
'  govern  according  to  the  prescriptions  of  law.  To  classify 
states  as  "classic"  or  antique  is  about  as  logical  and  scien- 
tific as  to  classify  them  as  "territorial"  states,  "human" 
states,  "medieval"  states,  "modern"  states,  etc.  Such 
terms  do  not  belong  properly  to  the  nomenclature  of  politi- 
cal science,  but  to  that  of  literature  and  history,  and  hence 
such  classifications  have  little  or  no  scientific  or  practical 
value. ^ 
Blunt-  Bluntschli  conceived  the  "fundamental"  forms  of  state 

ciassifi-  to  be  four  in  number:  monarchy,  aristocracy,  democracy, 
cation  and  ideocracy  or  theocracy,  the  last  in  its  perverted  form 
being  styled  by  him  an  idolocracy.^  In  addition,  he  recog- 
nized a  group  of  "secondary"  forms  which  he  considered 
necessary  to  complete  the  Aristotelian  classification, 
namely,  free,  half-free,  and  unfree  states.  Theocracies,  he 
said,  tend  to  become  unfree  states ;  aristocracies ' '  gravitate ' ' 
toward  the  half-free  class;  while  democracies  naturally 
belong  to  the  free  type,  although  they  may  become  des- 
potisms.^ Furthermore,  he  added  confusion  by  attempt- 
ing to  classify  states  as  civilized  monarchies,  patriarchal 
kingships,  feudal  monarchies,  military  and  judicial  princi- 
palities, absolute,  limited,  and  constitutional  monarchies, 
compound  states,  mixed  states,  and  various  others. 
The  So-  Some  writers  have  recognized  the  existence  of  a  mixed 

state  made  up  of  a  combination  of  monarchical,  aristo- 


called 
Mixed 
State 


'  Compare  Burgess,  "Political  Science  and  Constitutional  Law,"  vol.  I,  pp. '73-74. 
^"AUgemeine  Staatslehre,"   bk.   VI,  ch.    4;    see   also  his  essay  entitled  "Die 
Staatsformen  "  in  his  "  Psychologische  .Studien  iiber  Staat  und  Kirche." 
^  "  Allgemeine  Staatslehre,"  ch.  5. 


OTHER   CLASSIFICATIONS  135 

cratic,  and  democratic  elements.  Aristotle  himself  seems 
to  have  considered  the  ideal  polity  to  be  a  "mixture"  of 
oligarchy  and  democracy.*  Rome  was  cited  by  both 
Cicero  and  Polybius  as  an  example  of  the  mixed  type,  being 
composed  of  monarchic,  aristocratic,  and  democratic  ele- 
ments, and  Gicero  considered  the  best  state  to  be  the  mixed 
form.^  Blackstone  and  Rousseau  are  sometimes  cited  as 
recognizing  the  mixed  form,  but  it  is  clear  from  an  examina- 
tion of  their  classifications  that  they  were  thinking  of  forms 
of  government  rather  than  of  forms  of  state.  Bluntschli 
defined  a  mixed  state  as  "one  in  which  monarchy,  aris- 
tocracy, or  democracy  is  moderated  or  limited  by  other 
political  factors,"  as,  for  example,  a  monarchy  which  is 
limited  by  an  aristocratic  senate  or  by  the  people  acting 
through  a  primary  or  a  representative  body.^  But  obvi- 
ously such  a  combination  is  nothing  more  than  a  form  of 
government,  not  a  form  of  state.  Bluntschli  indeed  ad- 
mitted that  such  a  "mixture  does  not  create  a  new  form 
of  state,  for  the  sovereignty  is  still  in  the  monarch,  the 
aristocracy,  or  the  people."  The  truth  is,  there  can  be  no 
such  thing  as  a  mixed  state.  The  state  is  a  unity;  its 
attributes  are  incapable  of  combination  and  intermixture. 
A  monarch  and  an  aristocratic  body  cannot  both  be  sover- 
eign at  the  same  time,  and  hence  the  state  cannot  be  a 
monarchy  and  an  aristocracy  at  the  same  time  any  more 
than  a  number  can  be  at  once  singular  and  plural.* 

'  "Politics,"  bk.  IV,  ch.8;  cf.  Willoughby,  "Political  Theories  of  the  Ancient 
World,"  p.  180. 

*  "  De  Republica, "  I,  23. 
3  Op.  cit.,  bk.  VI,  ch.  2. 

*  Great  Britain  is  sometimes  cited  as  a  good  example  of  a  mixed  state,  but  mani- 
festly it  is  not  the  state  that  is  mixed.  It  has  a  government  composed  of  monarchical, 
aristocratic,  and  democratic  elements,  but  the  state  is  a  unity  and  the  sovereignty  is 
undivided.  On  "mixed  governments"  see  De  Parieu,  "  Principes  de  Politique," 
ch.  5;  and  De  Tocqueville,  "Democracy  in  America,"  ch.  15.  De  Parieu  reviews 
the  subject  historically  and  points  out  the  "mixed"  elements  in  various  govern- 
ments. 


136      FORMS   OF    STATE   AND    ASSOCIATIONS    OF    STATES 

V.     SIMPLE  AND   COMPOSITE     STATES;     PERSONAL  AND   REAL 

UNIONS  ^ 

Many  writers,  as  has  been  said,  classify  states  as  simple 
and  composite.^  A  simple  state  is  one  which  has  a  single 
supreme  government  and  exerts  a  single  will,  whether  it  be 
that  of  an  individual  or  an  assembly.  It  may  for  conven- 
ience of  administration  be  subdivided  into  provinces,  de- 
partments, communes,  counties,  etc. ;  or  it  may  possess 
non-contiguous  territories,  such  as  colonies  and  dependen- 
cies; or  it  may  even  include  territorial  divisions  that  were 
formerly  independent  states,  like  Ireland  and  Scotland. 
But  so  long  as  the  subdivisions  are  legally  nothing  but  his- 
torical or  administrative  circumscriptions  without  an  exten- 
sive local  autonomy  as  of  right,  the  state  is  simple  in  form. 
Such  a  Commonwealth  is  sometimes  described  as  a  unitary 
state  (the  Einheitsstaat  of  the  Germans)  because  the  gov- 
ernmental organization  is  a  unit  rather  than  dualistic  or 
federal  in  character.  The  administrative  districts  into 
which  such  a  state  is  divided  possess  neither  the  name,  the 
traditions,  nor  the  characteristics  of  states,  and  whatever 
powers  of  government  they  exercise  or  whatever  rights 
of  autonomy  they  possess  are  delegated  to  them  by  the 
central  government,  and  may  be  modified  or  withdrawn 
at  its  pleasure.  The  empires  and  kingdoms  of  Europe 
(Germany  excepted)  with  their  vast  outlying  possessions,  to 
which  are  delegated  important  powers  of  local  government, 
are  nothing  but  unitary  states,  because  the  local  govern- 
mental organizations  are  the  creations  of  one  central  power, 
which  determines  their  competence  and  to  which  in  the  last 
analysis  they  are  completely  subject.' 

*  The  terms  "simple"  and  "composite"  are  in  strictness  descriptive  of  forms  of 
government  rather  than  forms  of  state,  but  the  above  classification  is  observed  and  the 
subject  is  treated  in  this  chapter  rather  than  in  the  next,  in  deference  to  popular  usage. 

^  Martens  adds  a  third  class,  united  states  (eiats-unis) .  "Traite  de  Droit  inter- 
national," vol.  I,  p.  311. 

'  Some  winters,  like  Heffter  ("  Volkerrecht,"  sec.  20),  consider  Great  Britain  vsrith 


PERSONAL   AND    REAL   UNIONS  137 

Where  two  or  more  states,  wholly  separate  and  distinct  Personal 
in  their  external  and  internal  relations,  are  associated  to-  '^*"" 
gether  under  the  same  reigning  sovereign,  we  have  what  is 
called  a  personal  union/  The  only  bond  of  connection  is 
the  crown.  Each  of  the  associated  states  is  entirely  inde- 
pendent of  the  other;  each  has  its  own  constitution  and 
laws,  its  own  distinct  political  organization,  and  its  own 
citizenship  and  local  institutions.  The  acts  of  their 
common  sovereign  in  relation  to  each  of  the  member  states 
have  no  application  within  the  territories  of  the  other  nor 
any  binding  effect  upon  its  citizens.  Indeed  the  subjects 
or  citizens  of  the  one  are  foreigners  to  the  other.  Though 
physically  the  same  person,  the  sovereign  possesses  two 
distinct  legal  personalities  and  may  enjoy  widely  different 
powers  and  attributes  in  the  different  states  composing  the 
union.  He  may  be  an  absolute  ruler  in  one  and  a  constitu- 
tional ruler  in  the  other.  In  international  as  well  as  internal 
relations  each  constitutes  a  distinct  and  separate  person- 
ality, so  much  so  that  one  might  make  war  upon  the  other 
without  affecting  the  union,  or  declare  war  against  a  third 
power  without  involving  the  belligerency  of  its  associate. 
The  distinguishing  characteristic  of  a  personal  union,  says 

its  great  and  largely  autonomous  self-governing  colonies  as  a  composite  state  rather 
than  a  simple  state,  but  the  weight  of  the  opinion  and  reason  are  against  such  a 
view.  On  the  nature  of  the  unitary  state  see  Gareis,  "  Allgemeine  Staatslehre  "  in 
Marquardsen's  "  Handbuch,"  pp.  100-104;  Meyer,  "  Deutsches  Staatsrecht,"  pp. 
II  ff . ;  and  Nys,  "  Le  Droit  international,"  vol.  I,  pp.  367-368. 

'  Despagnet,  "  Cours  de  Droit  int.  pub.,"  pp.  88-S9;  Nys,  "  Le  Droit  int.,"  vol.  I, 
PP-  377^378;  Rivier,  "Principes  du  Droit  des  Gens,"  vol.  I,  pp.  93-97;  Hail, 
"International  Law,"  sec.  4;  Moore,  "Digest  of  International  Law,"  vol.  I,  sec.  7; 
Oppenheim,  "International  Law,"  vol.  I,  sec.  86;  Bonfils,  "Droit  international 
public,"  ed.  by  Fauchille,  pp.  87-8S;  Calvo,  "Droit  international,"  vol.  I,  sees. 
45-48;  Pradier-Fodere,  "Traite  de  Droit  international  public,"  vol.  I,  pp.  201-202; 
Kliiber,  "Droit  des  Gens,"  sec.  27;  Juraschek,  "Personal-  und  Realunion";  Mar- 
tens, "Traite  de  Droit  international,"  vol.  I,  sec.  58.  Some  writers  classify  the 
personal  union  as  a  form  of  composite  state,  but  there  is  no  justification  for  such  a 
classification,  since  such  a  union  constitutes  no  new  state  but  represents  only  a 
condition  in  which  two  or  more  states  employ  a  common  agent  for  certain  purposes. 
Martens  classifies  it  under  the  head  of  united  states  (etats-unis),  which  is  more 
defensible.     Op.  cit.,  sec.  58. 


138     FORMS   OF   STATE   AND   ASSOCIATIONS   OF   STATES 


Examples 
of 

Personal 
Unions 


Hall,  is  that  states  employ  for  the  time  being  the  same  agent 
for  a  particular  class  of  purposes;  but  they  are  in  no  way 
bound  by  or  responsible  for  each  other's  acts.  Such  a  con- 
dition may  result  from  treaty  stipulation  or,  as  is  more 
commonly  the  case,  from  the  operation  of  identical  suc- 
cession laws  which  fix  the  crown  upon  the  same  dynasty. 
In  the  latter  case  the  union  necessarily  ceases  with  the 
extinction  of  the  dynasty,  each  state  then  being  free  to 
choose  a  different  sovereign.  It  may  also  happen  that  the 
reigning  sovereign  of  one  state  is  formally  chosen  by  another 
state  to  rule  over  it,  in  which  case  the  union  ceases  with  the 
death  of  the  common  ruler  unless  it  is  renewed  by  the  joint 
election  of  a  successor.  Likewise,  if  the  ruling  prince  is 
overthrown  by  revolution  in  one  state,  and  the  succession 
thereby  changed,  the  union  is  necessarily  terminated.  It 
may  also  be  terminated  where  the  law  of  succession  is 
different,  as,  for  example,  where  a  woman  should  come  to 
the  throne  in  one  of  the  states,  but  would  be  ineligible  in 
the  other. 

Examples  of  personal  unions  were  the  union  between 
Spain  and  the  old  German  Empire  under  Charles  V,  1520- 
1556;  between  England  and  Hanover  from  1714  to  1837, 
terminated  by  the  accession  of  Victoria  as  Queen  of  Eng- 
land, the  laws  of  succession  in  Hanover  not  permitting 
females  to  succeed;  between  Holland  and  Luxembourg, 
1815-1890;  between  Schleswig-Holstein  and  Denmark, 
1776-1863;  and  finally,  the  general  act  of  the  Berlin  Con- 
ference of  1885,  followed  by  a  Belgian  law  of  the  same 
year,  which  declared  that  the  relation  between  the  king  of 
the  Belgians  and  the  Congo  state  should  be  exclusively 
personal  in  character.^ 

'  Rivier,  op.  cit.,  vol.  I,  pp.  94-95.  This  relation  has  been  somewhat  modified 
by  recent  acts  (see  Bonfils,  op.  cit.,  p.  88).  The  king  of  Prussia  until  1848  was 
sovereign  of  the  principality  of  Neufchatel,  then  a  member  of  the  Swiss  Confedera- 
tion (see  Pradier-Fodere,  op.  cit.,  vol.  I,  p.  202).  Bonfils  asserts  that  the  connection 
between  England  and  India  since  1877,  when  Victoria  was  proclaimed  Empress  of 
India,  has  been  that  of  a  personal  union.     Wheaton  adds  Norway  and  Sweden  (after 


PERSONAL   AND    REAL    UNIONS  139 

The  so-called  composite  state  is  one  composed  of  two  or  The 
more  states  or  of  communities  which  have  a  wide  autonomy  state'"^*** 
as  of  right,  and  which  often  possess  the  name  and  always 
some  of  the  characteristics  of  states.  Pradier-Fodere  de- 
scribes it  as  a  union  of  a  "certain  number  of  states  which 
have  internally  independent  governments  though  not  indi- 
vidually sovereign."^  It  differs  from  the  simple  state  in 
that  it  is  itself  constructed  out  of  states,  or  at  least  out  of 
communities  which  were  once  states  and  which  are  still 
organized  like  states  and  retain  a  limited  international 
capacity.  The  degree  of  sovereignty  or  local  autonomy, 
as  the  case  may  be,  which  the  component  members  retain, 
as  well  as  the  character  of  the  international  person  which 
they  collectively  constitute,  depends  upon  the  nature  of 
the  act  by  which  the  union  has  been  created.  Composite 
states  are  usually  classified  as  real  unions,  confederations, 
and  federal  unions  and,  some  writers  add,  states  maintain- 
ing protectorates  and  suzerainties. 

A  "real  union"  results  from  the  joining  together  of  two  Real 
or  more  states,  not  merely  through  the  employment  of  a  ^^^"^ 
common  ruler,  but  through  the  creation  of  common  consti- 
tutional or  international  arrangements  for  the  administra- 
tion of  certain  common  affairs.  Such  a  union  occurs,  says 
Hall,  when  states  are  indissolubly  combined  under  the 
same  monarch,  their  identity  being  merged  in  that  of  a 
common  state  for  external  purposes,  though  each  may 
retain  distinct  internal  laws  and  institutions.^     It  differs 

1814)  to  the  list  of  personal  unions  ("Elements  of  International  Law,"  ed.  by 
Lawrence,  p.  72),  but  obviously  he  did  not  understand  the  true  relation  between 
the  two. 

'  "  Traite  de  Droit  international  public,"  vol.  I,  p.  207.  Compare  also  Bonfils, 
"Droit  international  public  "  (ed.  by  Fauchille),  pp.  86-87. 

^  "International  Law,"  p.  28.  Brie  defines  a  "real  union"  as  a  "  Verein  von 
Staaten  mit  rechtlicher  Gemeinsamkeit  der  Person  des  Staates  oherhaupts  imd  zwar 
des  monarchischen  Staats  ilberhaupts."  "Theorie  der  Staatenverbindungen,"  p.  69. 
See  also  Martens,  op.  ciL,  vol.  I,  p.  323;  Moore,  "Digest  of  International  Law," 
vol.  I,  sec.  9;  Rivier,  op.  cit.,  vol.  I,  pp.  97  ff. ;  Le  Fur  und  Posener,  "Bundesstaat 
und  Staatenbund,"  sec.  73;  Pradier-Fod^re,  op.  cit.,  vol.  I,  pp.  202-204;  Calvo, 


Hungary 


140     FORMS   OF   STATE   AND   ASSOCIATIONS   OF    STATES 

from  the  personal  union  in  that  the  associated  states  or 
component  members  are  organically  united  by  constitu- 
tional bonds  and  have  common  organs  of  government  and 
a  single  international  personality  for  most  purposes/  It 
also  possesses  greater  elements  of  permanence,  its  existence 
being  unaffected  by  the  death  of  the  common  sovereign  or 
the  extinction  of  the  reigning  dynasty.^ 
Examples  The  most  notable  example  of  a  real  union  to-day  is  that 
Un?o*ns—  between  Austria  and  Hungary.  The  union  between  the 
Austria-  kingdoms  of  Norway  and  Sweden  from  18 15  to  1905  was 
also  an  example.  The  former  rests  upon  constitutional 
compact,  the  act  of  union  being  embodied  in  a  pair  of 
identical  statutes  adopted  by  the  parliaments  of  the  two 
states  in  1867.  They  not  only  have  the  same  ruling  sover- 
eign (who,  it  may  be  observed,  enjoys  different  titles  and 
dignities  in  the  two  states  and  is  crowned  separately  in 
each),  but  a  common  legislative  body  for  limited  purposes, 
a  common  army  organized  on  the  same  basis  and  com- 
manded in  a  common  language,  a  common  diplomatic  ser- 
vice, a  common  court  of  accounts,  a  common  tariff  and 
trade  union,  and  common  ministries  of  war,  finance,  and 
foreign  affairs.  The  expense  of  the  joint  administration  is 
borne  by  the  two  states  according  to  a  proportion  agreed 
upon   by   them.     In   international   intercourse   the   union 

sees.  45-48;  Schuize,  "Lehrbuch  des  deutschen  Staatsrechts,"  vol.  I,  pp.  43,  44; 
Bonfils,  op.  cit.,  pp.  88-90;  Gareis,  "Allgemeine  Staatslehre,"  in  Marquardsen's 
"Handbuch,"  vol.  I,  pp.  105-106;  Despagnet,  "  Cours  de  Droit  int.  pub.,"  p.  89; 
Nys,  "Le  Droit  international,"  vol.  I,  pp.  368-370;  and  Carnazza-Amari,  "Traits 
de  Droit  int.  pub.,"  vol.  I,  pp.  269-270. 

*  Juraschek,  "Personal-  und  Realunion,"  p.  95. 

'  Jellinek  considers  the  "  real  union  "  to  be  a  special  form  of  confederation  {Staaten- 
bund)  which  results  from  the  legal  union  of  two  or  more  independent  states  for  com- 
mon protection  under  one  and  the  same  physical  personality,  who  acts  as  the  common 
bearer  of  the  power  of  the  component  members,  though  each  retains  its  sovereignty. 
"  Die  Lehre  von  den  Staatenverbindungen,"  p.  215.  A.  B.  Hart  ("  Federal  Govern- 
ment," pp.  14-15)  groups  "personal"  and  "real"  unions  together  with  the  so-called 
"incorporate"  union  under  the  head  of  "conjunctive"  unions,  since  the  dis- 
tinguishing characteristic  of  all  such  formations  is  that  they  employ  conjointly  the 
same  sovereign. 


PERSONAL   AND   REAL   UNIONS  I41 

represents  a  single  personality,  though  for  most  purposes  of 
internal  administration  each  state  retains  its  own  sover- 
eignty and  independence.^ 

The  terms  of  the  agreement  by  which  Norway  and  Norway 
Sweden  were  joined  were  embodied  in  a  treaty  of  August  6,  Sweden 
18 1 5.  According  to  the  agreement  Norway  recognized 
the  king  of  Sweden  as  its  sovereign  and  representative  in 
international  relations,  though  the  constitution  of  Norway 
expressly  declared  that  Norway  should  remain  a  "free, 
independent,  and  indivisible  empire."  The  treaty  of  union 
regulated  the  procedure  to  be  followed  in  both  kingdoms 
for  the  election  of  the  successor  of  their  common  sovereign. 
The  two  states  maintained  a  common  diplomatic  and 
consular  service,  though,  unlike  the  Austro-Hungarian 
arrangement,  their  foreign  relations  were  not  conducted 
through  the  agency  of  a  common  Norwegian-Swedish 
ministry,  but  through  the  Swedish  foreign  minister,  who 
managed   the  external  affairs  of   both   states.^     The  two 

'  Cf.  Lowell,  "Government  and  Parties  on  the  Continent  of  Europe,"  vol.  II, 
ch.  9;  Le  Fur  und  Posener,  "Bundesstaat  und  Staatenbund,"  sec.  73;  Kallesburg 
("Der  monarchische  Bundesstaat  Osterreich-Ungarn,"  18S0)  considers  the  Austro- 
Hungarian  union  to  be  a  federal  state;  Bidermann  ("Die  rechtliche  Natur  der 
Osterreichische  Ungarische  Monarchic,"  1877)  characterizes  it  as  a  personal 
union.  Some  of  the  Hungarian  publicists  consider  the  relation  little  more  than  per- 
sonal. Compare  an  article  by  Count  Albert  Apponyi  in  the  "North  American  Re- 
view "  for  May,  1905.  The  relation  between  Hungary  and  Croatia  is  treated  by 
some  writers  as  that  of  a  personal  union  (e.g.,  Ulbrich,  "Die  rechtHche  Natur  der 
Osterreichischungarischen  Monarchic,"  1S99,  and  Brie,  "Theorie  der  Staatenver- 
bindungen,"  p.  70);  others,  Hke  Bidermann,  consider  it  a  federal  union.  Le  Fur 
and  Posener  ("Bundesstaat  und  Staatenbund,"  p.  303)  take  the  latter  view.  See 
also  Rivier,  op.  cit.,  vol.  I,  p.  98;  and  Jellinek,  "Staatenverbindungen,"  pp.  234  ff. 

'  While  the  two  states  had  a  common  foreign  policy,  each  retained  its  separateness 
and  individuality  in  the  family  of  nations  and  each  sometimes  concluded  separate 
though  identical  treaties  with  foreign  states.  Thus  the  United  States  had  identical 
extradition  conventions,  bearing  dif?erent  dates,  with  each  state,  though  they  were 
entered  into  with  the  king  of  Sweden  and  Norway.  The  obligation  to  deliver  up 
fugitives  from  justice  in  each  case  rested,  not  on  the  common  government,  but  upon 
the  particular  government  concerned.  "Treaties  of  the  United  States  now  in 
Force,"  1899,  pp.  486-471  and  621-625;  Moore,  "Digest,"  sec.  9.  On  the  legal 
nature  of  the  union  between  Norway  and  Sweden  see  Jellinek,  "  Staatenverbin- 
dungen," pp.  223-234. 


142      FORMS   OF    STATE    AND    ASSOCIATIONS   OF    STATES 

states  had  different  commercial  and  naval  flags  and  distinct 
systems  of  internal  administration;  and  each  had  its  own 
army  under  the  command  and  direction  of  the  joint  king. 
Unlike  the  Austro-Hungarian  union,  there  was  nothing  in  the 
nature  of  a  common  legislative  assembly,  nor  were  there 
any  joint  ministries  of  state.  Matters  of  common  interest, 
which  could  not  be  regulated  by  the  joint  king,  were  dealt 
with  by  the  concurrent  action  of  the  parliaments  of  the 
two  kingdoms.  The  joint  arrangements  were  indeed  so 
few  and  unimportant  that  some  writers  have  treated  the 
relation  as  simply  that  of  a  personal  union, ^  though  this  is 
incorrect,  since  the  perpetuity  of  the  union  did  not  depend 
upon  any  dynasty  or  law  of  succession.  The  increasing 
dissatisfaction  of  Norway  and  its  desire  for  a  real  joint* 
ministry  of  foreign  affairs  and  a  separate  consular  system 
led  to  the  disruption  of  the  union  in  1905  by  the  secession 
of  Norway  and  the  conclusion  between  the  two  states  of  a 
treaty  of  permanent  separation. 

VI.     CONFEDERATIONS 

"A  confederation,"  says  Hall,  "is  a  union  strictly  of  inde- 
pendent states  which  consent  to  forego  permanently  a  part 
of  their  liberty  of  action  for  certain  specific  objects,  and  they 
are  not  so  combined  under  a  common  government  that  the 
latter  appears  to  their  exclusion  as  the  international  en- 
tity." ^     It  is  a  permanent  association  of  states  for  the  joint 

*  Notably  Wheaton,  Funck-Brentano  and  Sorel,  and  Phillimore.  Others,  like 
Sir  Travers  Twiss,  regard  it  as  a  federal  pact. 

^"International  Law,"  p.  28.  Compare  also  Pradier-Fodere,  who  conceives 
a  confederation  to  be  "an  association  of  sovereign  and  independent  states  which  do 
not  recognize  a  superior  and  common  authority,  each  state  retaining  its  own  sov- 
ereignty, the  right  to  govern  itself  according  to  its  own  laws,  there  being  no  common 
executive  power  with  a  right  to  impose  its  decrees  upon  the  citizens  of  the  member 
states  or  to  come  into  direct  relations  with  them."  "Traite  de  Droit  int.  pub.," 
vol.  I,  p.  204.  Jellinek  defines  a  Confederation  as  a  permanent  political  league 
(Bundniss)  having  a  permanent  central  organ  whose  purpose  is  at  least  the  common 
defense.    "Staatenverbindungen,"  p.  172.     Brie  describes  it  as  "e/w  aus  Staaten 


CONFEDERATIONS  143 

exercise  of  their  rights  of  sovereignty  for  the  common 
advantage.  It  differs  from  a  mere  alliance  in  having  a 
fixed  central  organ  for  ascertaining  and  giving  effect  to  the 
wills  of  the  component  states,^  in  the  greater  variety  of  its 
objects,  and  in  the  intent  of  perpetuity.  But,  says  Austin, 
a  system  of  confederated  states  and  a  number  of  independ 
ent  states  connected  by  an  ordinary  alliance  cannot  be  dis- 
tinguished precisely  through  general  or  abstract  expression. 
The  former  is  intended  to  be  permanent,  the  latter  tem- 
porary; while  the  ends  or  purposes  embraced  by  the  com- 
pact are  commonly  more  numerous  and  more  complicated 
than  in  the  case  of  the  temporary  alliance.^ 

Though  popularly  treated  as  a  form  of  state,  a  confed-  a  Confed- 
eration  is  in  fact  no  state,  but  a  league  or  a  band  of  states  g^Le^^e 
{Staatenbund)    rather    than   a    "banded   state"    (Bundes-  of  states 
staat) .'     The  component  members  of  a  confederation  retain 
their  internal  sovereignty,  dignity,  and  political  organiza- 
tions and,  to  a  greater  or  less  extent,  their  external  sover- 
eignty.    They  are  therefore  real  states,  not  mere  adminis- 
trative circumscriptions  with  a  limited  local  autonomy,  and 

zusammengesetztes  foderatives  Gemeinwesen."  "Theorieder  Staatenverbindungen," 
pp.  83-95.  For  further  literature  on  confederations  see  Rivier,  vol.  I,  sec.  6;  Gareis, 
in  Marquardsen's  "  Handbuch,"  vol.  I,  pp.  114-115  ;  Jellinek,  "Staatenverbin- 
dungen," pp.  172-194;  Brie,  "Staatenverbindungen,"  pp.  83-95;  Bornhak,  "  AUge- 
meine  Staatslehre,"  pp.  225-236;  Westerkamp,  "Staatenbund  und  Bundesstaat "; 
Freeman,  "History  of  Federal  Government,"  chs.  i  and  2;  Hart,  "Introduction 
to  Federal  Government,"  chs.  1-4;  Moore,  "Digest  of  International  Law,"  sec.  10; 
Oppenheim,  "International  Law,"  vol.  I,  pp.  128-129;  Wheaton,  "Elements  of 
International  Law,"  ch.  i;  Le  Fur  und  Posener,  "Bundesstaat  und  Staatenbund"; 
Bonfils,  "Droit  international  public,"  pp.  90-91;  Borel,  "Etude  sur  la  souverainete 
et  I'Etat  f^deratif  ";  Calvo,  op.  cit.,  vol.  I,  pp.  179-196;  Meyer,  "  Deutsches  Staats- 
recht,"  sec.  13;  Treitschke,  "Politik,"  vol.  II,  sec.  21;  Nys,  op.  cit.,  pp.  371-377; 
Despagnet,  op.  cit.,  pp.  135-136;  Carnazza-Amari,  op.  cit.,  vol.  I,  pp.  276-287; 
"The  Federalist,"  No.  39. 

'  Wheaton,  however,  maintains  that  a  confederation  differs  in  no  essential  particu- 
lar from  an  ordinary  alliance.     "  Elements,"  p.  75  (ed.  by  Lawrence). 

*  "Province  of  Jurisprudence  Determined,"  ed.  of  1861,  pp.  223-224. 

'  " Der  Staatenbund,"  says  Brie,  ^'ist  demnach  ein  Geimenwesen;  aher  er  ist  kein 
Staatswesen."  "Staatenverbindungen,"  p.  88.  Cf.  also  Duguit,  "Droit  constitu- 
tionnel,"  p. 141;  Jellinek,  "Staatenverbindungen," p.  178. 


144      FORMS   OF   STATE   AND   ASSOCIATIONS    OF   STATES 

their  relations  to  one  another  are  of  an  international  char- 
acter.* There  is  no  single  sovereignty,  but  as  many  sover- 
eignties as  there  are  states  composing  the  confederation. 
Confederations  rest  on  compact  or  articles  of  agreement 
rather  than  upon  constitutional  law.  They  have  only  a 
limited  juristic  personality  and  then  mainly  in  international 
relations.  They  have  as  such  no  citizens  or  subjects  to 
whom  their  commands  can  be  directly  addressed,  or  from 
whom  obligations  or  duties  may  be  required.  Being 
composed  of  sovereign  states,  their  governmental  organiza- 
tions rarely  operate  directly  upon  individuals,  but  reach 
them  only  through  the  medium  of  the  state  organizations.^ 
The  will  of  the  confederation  is  but  the  sum  total  of  the 
wills  of  the  component  states,^  and  is  expressed,  not  in 
statutes  framed  by  a  real  legislative  body,  but  in  ordinances 
or  resolutions  framed  by  a  quasi-diplomatic  body  consisting 
of  plenipotentiaries  representing  the  governments  of  the 
several  states  composing  the  confederation.^  These  pleni- 
potentiaries usually  vote  by  states  and  according  to  the 
instructions  of  the  governments  which  they  represent. 
The  Or-  Their  resolutions  have  no  binding  effect  upon  individuals 
0^3  Con°"  ^^  such,  but  are  addressed,  as  already  said,  to  the  organiza- 
fedaration  tious  of  the  compoucut  statcs,  and  are  usually  inoperative 
until  adopted  by  their  governments  and  given  the  force  of 
law  within  their  jurisdictions.  The  congress  or  diet  of  a 
confederation  has  no  power  to  enforce  its  resolutions  except 
by  "federal  execution,"  that  is,  by  the  use  of  force  against 
a  recalcitrant  member.  Most  of  the  confederations  in  the 
past  have  in  fact  had  no  executive  or  judicial  machin- 
ery, and  have  therefore  been  compelled  to  rely  upon  the 
good  faith  of  the  member  states  to  enforce  their  commands. 

*  This  is  sometimes  expressly  declared,  as,  for  example,  in  the  articles  of  union 
of  the  American  Confederation,  1 781-1789. 

*  Cf.  Rivier,  op.  cit.,  vol.  I,  p.  102 ;  Pradier-Fodere,  op.  cit.,  vol.  I,  p.  207. 
'  Jellinek,  "  Staatenverbindungen,"  p.  176. 

*  Cf.  Brie,  "Theorie  der  Staatenverbindungen,"  p.  91. 


CONFEDERATIONS  1 45 

Usually  the  component  members  are  free  to  withdraw  at 
will  and  thus  dissolve  the  confederation,  and  the  confederate 
authorities  have  no  constitutional  power  to  restrain  a  dis- 
affected member  and  compel  it  to  remain  in  the  confedera- 
tion against  its  will.* 

History  abounds  in  examples  of  confederations,  for  the  Example 
tendency  of  neighboring  states  to  associate  themselves  to-  fg^g°°_' 
gether  for  purposes  of  defense  and  for  the  furthering  of  their  tions 
common  interests  has  proved  to  be  almost  as  strong  as  the 
social  impulse  among  individuals.  Among  the  ancient 
Greeks,  confederations  were  numerous,  the  more  important 
being  the  Boeotian,  Delian,  Lykian,  Achaean,  and  yEtolian 
leagues.  In  some  cases  the  component  members  were 
federated  together  much  more  closely  than  in  others.  The 
constitution  of  the  Achaean  League,  for  instance,  provided 
for  a  common  executive  magistracy,  a  legislative  body,  and 
even  a  rudimentary  judiciary.^  Its  organization  was,  in 
fact,  so  highly  developed  that  it  is  considered  by  some 
writers  to  have  been  essentially  a  federal  union  rather  than 
a  confederation.'  Leagues  and  confederations  among  the 
early  Italian  cities  were  not  uncommon,  though  they 
never  attained   the  perfection  and  degree  of  importance 

*  Jellinek  recognizes  two  types  of  confederation :  first,  that  in  which  the  acts  of 
the  confederate  government  do  not  have  an  immediate  binding  effect  upon  the  indi- 
viduals composing  the  several  states ;  and  second,  that  in  which  the  diet  of  the  con- 
federation is  not  merely  a  congress  of  plenipotentiaries,  but  a  real  legislative  body, 
whose  acts  operate  directly  and  immediately  upon  individuals  rather  than  upon  the 
states  composing  the  confederation.  The  latter  form  approaches  closely  the  so- 
called  federal  state.  The  only  example  which  Jellinek  gives  of  the  second  type  is 
the  Confederacy  of  the  Southern  States  of  North  America,  1861-1865.  But  an  ex- 
amination of  the  constitution  of  the  Southern  Confederacy  will  show  that  it  was  a 
confederation  only  in  name,  and  differed  in  no  essential  particulars  from  other 
states  having  the  federal  system  of  government.  "  Staatenverbindungen,"  pp. 
189-195. 

*  Hart,  "  Introduction  to  Federal  Government,"  p.  32. 

'By  Freeman,  for  example,  in  his  "History  of  Federal  Government"  (1863). 
For  other  historical  accounts  of  early  federations  see  A.  B.  Hart,  "Introduction  to 
Federal  Government,"  and  Le  Fur  und  Posener,  "Bundesstaat  und  Staatenbund," 
sees.  4-14. 

POL,  SCI.  —  10 


146      FORMS   OF    STATP:   AND    ASSOCIATIONS    OF    STATES 

of  those  of  Greece.  During  the  medieval  period  several 
important  federations  were  formed,  among  which  may  be 
mentioned  the  Rhenish  Confederation  (i  254-1 350),  which 
eventually  embraced  some  seventy  members.  Then  came 
the  Hanseatic  League  (1367-1669),  which  was  originally 
organized  for  the  promotion  and  protection  of  trade,  but 
which  gradually  developed  into  a  great  political  power  that 
waged  war  and  negotiated  treaties,  and  eventually  came  to 
exercise  an  important  influence  on  the  international  affairs 
of  Europe.  It  had  a  sort  of  central  legislative  organ  and  a 
crude  judicial  machinery  for  the  adjudication  of  disputes 
among  the  members.^  The  Holy  Roman  Empire  (1526- 
1806),  the  most  extensive  federation  formed  before  the 
nineteenth  century,  eventually  embraced  several  hundred 
states  of  varying  types  and  importance  —  free  cities,  eccle- 
siastical territories,  and  hereditary  monarchies.  It  main- 
tained a  common  Diet  {Reichstag)  and  several  imperial 
courts.^  Other  examples  were :  the  Swiss  confederations  of 
1291-1798  and  1803-1848,  which  grew  out  of  the  union  of 
three  small  cantons,  but  which  in  the  course  of  time  came 
to  embrace  all  of  them;'  and  the  United  Netherlands, 
The  Con-  1576-1746,  composed  of  the  Dutch  provinces.  The  two 
of  t^he  ^^°  best-known  modern  examples  of  confederations  were  the 
United  United  States  of  America  from  1781  to  1789  and  the  Ger- 
1781-'  man  Confederation,  1815-1866.  The  former  turned  out  to 
^^^'  be  little  more  than  what  the  articles  of  union  described  it 

to  be,  namely,  a  "firm  league  of  friendship"  among  the 
states  composing  it.  It  was  expressly  declared  in  the 
articles  of  agreement  that  each  member  of  the  confedera- 
tion retained  its  sovereignty,  freedom,  and  independence 
and  every  power,  jurisdiction,  and  right  not  expressly  dele- 
gated to  the  confederation.*     Its  avowed  object  was  to 

*  Hart,  op.  cit.,  pp.  40-41. 

'  Bryce,  "Holy  Roman  Empire,"  especially  pp.  340-365;   Schulze,  "Deutsches 
Staatsrecht,"  sees.  26-34.  '  Calvo,  "Droit  international,"  vol.  I,  sec.  55. 

*  Articles  of  Confederation,  Art.  II. 


CONFEDERATIONS  147 

provide  common  protection  against  attack  upon  any  or 
all  of  the  states.^  The  collective  will  of  the  confedera- 
tion was  ascertained  and  expressed  through  a  congress 
of  delegates  constituted  without  any  reference  to  the 
populations  of  the  component  states.  No  common  ad- 
ministrative or  judicial  organs  were  created,  the  enforce- 
ment of  the  resolutions  of  the  congress  being  left  to  the 
individual  states.  The  powers  conferred  upon  the  general 
congress  were  so  meager  and  the  means  of  enforcing  its 
will  so  inadequate  that  it  perished,  to  use  the  language  of 
De  Tocqueville,  through  the  excessive  weakness  of  its 
government.^ 

The  German  Confederation  embraced  at  first  thirty-  The 
eight  states  of  varying  rank  and  importance  —  kingdoms,  coirfed- 
grand  duchies,  principalities,  and  free  cities.  It  was  de-  elation, 
clared  to  be  a  "perpetual  league"  for  the  purpose  of  pre-  1866 
serving  "the  external  and  internal  security  of  Germany  and 
the  independence  and  inviolability  of  the  confederate 
states."  The  collective  will  of  the  members  was  expressed 
through  a  Diet  of  plenipotentiaries  which  sat  at  Frankfort 
under  the  presidency  of  Austria.  They  were  appointed 
by  the  governments  of  the  states  which  they  represented, 
and  voted  according  to  instructions.  The  Diet  had  the 
power  to  send  and  receive  ambassadors,  to  declare  war  and 
conclude  peace  in  the  name  of  the  confederation,  and,  under 
certain  conditions,  to  intervene  in  the  affairs  of  the  indi- 
vidual states.  Each  state,  however,  retained  the  right  of 
legation  and  could  enter  into  foreign  alliances,  provided 
they  were  not  directed  against  the  security  of  the  confed- 
eration or  of  any  one  of  the  component  states.  In  case  war 
was  declared  by  the  confederation,  no  state  could  conclude 
peace  without  the  consent  of  the  confederation.  No 
member  of  the  confederation  could  make  war  against 
another  member,  and  in  case  of  differences  between  them  the 

1  Ibid.,  Art.  III. 

^  "Democracy  in  America"  (English  translation  by  Reeves),  vol.  I,  p.  168. 


148      FORMS   OF    STATE   AND   ASSOCIATIONS   OF   STATES 

disputes  were  to  be  submitted  to  the  decision  of  the  Diet. 
There  was  an  imperial  court  which  had  a  Hmited  jurisdic- 
tion, but  there  was  no  common  administrative  machinery, 
the  enforcement  of  the  resolutions  of  the  Diet  being  left 
mainly  to  the  individual  states. 


Examples 
of 

Federal 
Unions 


VII.     FEDERAL   UNIONS 

Where  several  states  unite  themselves  together  under  a 
common  sovereignty  and  establish  a  common  central 
government  for  the  administration  of  certain  affairs  of 
general  concern,  or  where  a  number  of  provinces  or  depend- 
encies are  similarly  united  by  their  common  superior,  the 
component  members  still  retaining  a  large  local  autonomy, 
but  surrendering  the  management  of  the  whole  or  nearly 
the  whole  of  their  external  affairs  to  the  central  govern- 
ment, we  have  a  federal  union,  or,  as  is  often  said,  a  fed- 
eral state. ^  The  historian  Freeman,  writing  in  1863,  said 
that  the  four  most  famous  federal  commonwealths  of  his- 
tory were :  the  Achaean  League  in  the  later  days  of  ancient 
Greece;  the  Confederation  of  Swiss  cantons  from  1291  to 
the  present;  the  United  Provinces  of  the  Netherlands, 
1579-1795;  and  the  United  States  of  America,  1789-1863, 
which  Freeman  predicted  was  at  that  time  nearing  its  end. 
The  first  and   last   mentioned,  he  said,   represented  the 

*  For  discussions  of  the  federal  state,  so-called,  see  Le  Fur  und  Posener,  "  Bundes- 
staat  und  Staatenbund,"  especially  pp.  186-317;  Bornhak,  "  Allgemeine  Staats- 
lehre,"  pp.  236-254;  Brie,  "Theorie  der  Staatcnverbindungen,"  pp.  95  et  seq., 
also  his  "  Der  Bundesstaat" ;  Gareis,  "  Allgemeine  Staatslehre,"  sec.  41 ;  Carnazza- 
Amari,  op.  cit.,  vol.  I,  pp.  272-276 ;  Jellinek,  "  Staatcnverbindungen,"  pp.  253-314 ; 
Rivier,  op.  cit.,  vol.  I,  pp.  104-108 ;  Bonfils,  "  Droit  international  public,"  pp.  91-93 ; 
Despagnet,  op.  cit.,  pp.  133-135;  Martens,  "Traite  de  Droit  international," 
vol.  I,  pp.  326-330;  Nys,  op.  cit.,  vol.  I,  pp.  372-377;  Pradier-Fod^re,  "Traits," 
etc.,  vol.  I,  pp.  207-214;  Westerkamp,  "Staatenbund  und  Bundesstaat";  Free- 
man, "History  of  Federal  Government";  Hart,  "Introduction  to  Federal  Govern- 
ment"; Moore,  "Digest  of  International  Law,"  vol.  I,  sec.  11 ;  Meyer,  "Deutsches 
Staatsrecht,"  sec.  14;  Dicey,  "Law  of  the  Constitution,"  ch.  4;  Willoughby, 
"Nature  of  the  State,"  ch.  10;  Treitschke,  "Politik,"  vol.  II,  sec.  21;  Brater  und 
Bluntschli,  "  Staatsworterbuch,"  vol.  II,  pp.  284  ff. 


FEDERAL   UNIONS  149 

"most  perfect  development  of  the  federal  principle  which 
the  world  has  ever  seen,"  though  there  were  several  ancient 
confederations  "whose  constitutions  must  have  realized  the 
federal  idea  almost  as  perfectly  as  the  more  famous  league 
of  Achsea."  ^ 

Since  the  publication  of  Freeman's  "History  of  Federal 
Government"  a  goodly  number  of  federal  unions  have  been 
established  in  various  parts  of  the  world.  The  most 
important  of  these  are:  the  Dominion  of  Canada  (1867); 
the  German  Empire  (1871) ;  the  reorganized  Swiss  republic 
(1874);  Brazil  (1891);  the  Commonwealth  of  Australia 
(1900);  and  Venezuela  (1903).^ 

Strictly  speaking,  however,  there  can  be  no  such  thing  No  Such 
as  a  federal  state.     What  is  popularly  called  a  federal  state  a^peferai 
is  in  fact  a  democratic  or  aristocratic  state  having  a  federal  state 
system  of  government,  that  is,  a  dual  form  of  government 
under  a  common  sovereignty.^     In  this  chapter,  therefore, 
our  discussion  will  be  restricted  mainly  to  a  description  of 
the  legal  nature  of  the  association  created  by  a  union  of 
states  under  a  federal  organization,  and  the  discussion  of 
its  governmental  system  will  be  reserved  for  the  chapter 
on  "Forms  of  Government." 

The  historian  Freeman,  who  employs  the  terms  "federal  Marks 
government"    and    "federal    state"    without    discrimina-  pg^gj-ai 
tion,  says,  "The  name  federal  government  may  be  applied  Union 
to  any  union  of  component  members  where  the  degree  of 
union  between  the  members  surpasses  that  of  mere  alli- 
ance, however  intimate,  and  where  the  degree  of  indepen- 
dence possessed  by  each  member  surpasses  anything  which 
can  fairly  come  under  the  head  of  mere  municipal  free- 
dom." *     Again,  he  observes  that  a  "federal  commonwealth 

'  "History  of  Federal  Government,"  p.  7. 

^  The  Mexican  federal  system  was  established  in  1857,  and  that  of  Argentine  in 
i860.  The  states  of  Bolivia,  Ecuador,  Colombia,  Chile,  and  Peru  still  remain 
ynitary  centralized  republics. 

'  Compare  Burgess,  "  Political  Science  and  Constitutional  Law,"  vol.  I,  p.  79. 

*  "History  of  Federal  Government,"  pp.  2-3. 


150      FORMS   OF    STATE   AND    ASSOCIATIONS   OF    STATES 

in  its  perfect  form  is  one  which  forms  a  single  state  in  its 

relations  to  other  nations,  but  which  consists  of  many  states 

with  regard  to  its  internal  government."^ 

Distinc-  Ordinarily  the  distinguishing  marks  of  a  federal  union  are : 

tween^a      hrst,  the  existence  of  a  number  of  political  communities 

Federal       possessing  of  right  their  own  constitutions  and   forms  of 

Union  and    ^  f  1      •  •    1  • 

a  Con-  government,  and  bemg  supreme  withm  a  certam  more  or  less 
federation  extensive  Sphere  reserved  by  their  own  action ;  and,  second, 
a  common  constitution  and  government,  for  the  direct  ad- 
ministration of  certain  general  concerns.  Unlike  a  confed- 
eration, a  federal  union  is  not  a  mere  league  of  independent 
states  associated  together  for  purposes  mainly  of  common 
defense,  but  it  is  a  union  resulting  from  the  merger  of  a 
number  of  political  communities  for  the  regulation  of 
various  matters  common  to  all  the  component  members. 
It  is  a  sort  of  composite  state,  a  new  creation  of  consti- 
tutional law,  not  a  band  of  states  connected  together  by 
international  agreement.  The  act  by  which  a  federal 
union  is  established  is  not  a  mere  compact,  but  a  constitu- 
tion. In  its  external  relations  it  resembles  a  "real  union," 
while  internally  it  bears  some  resemblance  to  a  confedera- 
tion. On  its  international  side,  observes  Hall,  it  consists 
of  a  central  government  to  which  the  conduct  of  all  external 
relations  is  confided  and  in  the  absence  of  any  right  on  the 

'  "History  of  Federal  Government,"  p.  Qi-  Compare  the  definition  of  Jellinek, 
"Staatenverbindungen, "  p.  278;  also  the  definition  of  Le  Fur  und  Posener 
{op.  cit.,  p.  15):  " /«  Bundesstaaten  haben  die  Einzelstaaten  einen  verfassungs- 
massig  bestimmtcn  Anteil  an  der  Bildung  des  hoclisten  Willens  des  Staates.  Im 
Bundesstaal  ruht  die  Sonverdnitdl  nicht  bei  einem  Gliederstaate,  sondern  bei  der 
Zentralgewalt,  welche  von  den  Gliederstaaten  verschieden  ist."  Compare  also 
Montesquieu's  definition  of  a  "confederate  republic"  :  "This  form  of  government 
is  a  convention  by  which  several  petty  states  agree  to  become  members  of  a  larger 
one,  which  they  intend  to  establish.  It  is  a  kind  of  assemblage  of  societies,  that 
constitute  a  new  one,  capable  of  increasing  by  means  of  further  associations  till 
they  arrive  at  such  a  degree  of  power  as  to  be  able  to  provide  for  the  security  of  a 
whole  body."  "Esprit  des  Lois"  (Eng.  trans,  by  Pritchard),  vol.  I,  pp.  136-137. 
See  also  Meyer,  "  Deutsches  Staatsrecht,"  p.  43 ;  and  Laband,  "  Staatsrecht  des 
deutschen  Reiches,"  vol.  I,  sec.  7. 


FEDERAL   UNIONS  151 

part  of  the  states  to  separate  themselves  from  it.*  It 
differs  from  a  confederation  in  the  character  and  degree  of 
the  relationship  subsisting  between  the  members  compos- 
ing the  union  and  in  the  possession  by  the  former  of  a 
central  organization  endowed  not  only  with  practically 
exclusive  powers  in  relation  to  foreign  affairs,  but  also  with 
important  powers  of  government  as  regards  internal  affairs 
of  common  concern.  In  a  federal  union  the  component 
parts  are  subject  to  a  common  sovereign,  and  collectively 
they  form  a  single  united  state.  In  a  confederation  the 
parts  have  no  common  sovereign,  and  they  do  not  consti- 
tute a  single  political  society,  but  each  is  itself  a  sover- 
eignty. In  the  federal  system  there  is  but  one  real  state, 
one  central  government  and  a  number  of  local  govern- 
ments; in  short,  the  state  is  coextensive  in  organization 
with  the  organization  of  the  central  government.  In  the 
confederate  system,  on  the  contrary,  there  are  as  many 
states  as  there  are  component  members. 

Some  writers,  like  Freeman,  De  Tocqueville,  John  Stuart  Distinc- 
Mill,  Wheaton,  and  the  authors  of  "The  Federalist,"  distin-  Jj^e^'enPer- 
guish   between  perfect  and  imperfect  federal  unions.     The  f^^t  ani 
difference  is  one  mainly  of  degree.      The  former  is  one  which  Federal 
contains  no  elements  of  confederatism.     It  is  one  in  which  ^°*°^^ 
the   central    government  is   fully  supreme  in  all  external 
affairs  and  in  certain  specified  internal  affairs  of  general 
concern;    which   acts  directly  and   immediately   upon   all 
individuals   within   the   federation;    and   which    possesses 
the  power  and  means  of  enforcing  its  own  declared    will. 
This  is  what  the  German  writer  Brie  calls  the  "ideal  fed- 
eral state."  ^     An  imperfect  federal  union  is  one  in  which 
remnants  of  confederatism  survive,  one,  in  short,  which  is 
organized  more  like  a  confederation  than  a  unitary  state. 

*  "International  Law,"  3d  ed.,  p.  26.  See  also  Jellinek,  who  remarks  that  the 
lack  of  power  on  the  part  of  the  component  members  of  a  federal  state  to  secede  there- 
from follows  from  the  juristic  nature  of  the  union.     "  Staatenverbindungen,"  p.  298. 

'"Der  Bundesstaat,"  p.  140. 


152      FORMS   OF    STATE   AND   ASSOCIATIONS   OF   STATES 

The  component  states  possess  a  limited  power  in  the  man- 
agement of  foreign  affairs;  the  acts  of  the  central  govern- 
ment are  enforced  by  the  individual  state  governments  and 
"its  powers  consist  simply  in  issuing  requisitions  to  the  state 
governments  when,  within  the  proper  limits  of  the  federal 
authority,  it  is  the  duty  of  these  governments  to  carry  it 
out."  ^  The  German  Empire  is  a  good  example  of  what  has 
been  called  an  imperfect  federal  union. 

The  truth  is,  most  federal  unions  belong  to  the  imperfect 
type;  that  is,  they  represent  a  mixture  of  federalism  and 
confederatism.  Thus,  in  the  organization  of  the  German 
Empire  the  structure  of  the  Reichstag  and  the  judiciary  is 
federal  in  character,  while  the  Bundesrath  is  based  on  the 
confederate  principle.  The  states  composing  the  Empire 
retain  a  limited  power  of  legation  and  of  military  adminis- 
tration, while  the  execution  of  the  laws  of  the  Empire  de- 
volves largely  upon  the  local  governments.  Certain  of  the 
states,  moreover,  are  endowed  with  important  special 
privileges  of  which  they  cannot  be  deprived  without  their 
own  consent.  These  and  other  features  give  it  a  confed- 
erate character  in  a  more  marked  degree  than  is  found  in 
any  other  existing  federal  system.  The  republic  of  the 
United  States  possesses  also,  though  to  a  less  extent,  the  qual- 
ities of  both  a  federal  union  and  a  confederacy.  This  was  first 
pointed  out  by  Madison,  who  showed  that  the  constitution  in 
its  method  of  adoption,  ratification,  and  amendment,  as  well 
as  in  the  organization  of  the  Senate,  was  confederate  in 
principle,  while  as  regards  the  sources  of  the  powers  of  the 
government,  the  organization  of  the  army,  and  the  execu- 
tion of  the  laws  it  was  federal  in  character.^ 


'  Freeman,  "History  of  Federal  Government,"  p.  11. 

'  "  The  Federalist,"  No.  39,  where  Madison  distinguished  between  what  he  called 
the  "federal"  and  "national"  elements  in  the  origin,  structure,  and  operation  of  the 
government  of  the  United  States.  See  also  Woodburn,  "The  American  Republic," 
pp.  65-70;  Brie,  "Der  Bundesstaat,"  pp.  105  £f.;  and  Jellinek,  "  Staatenverbin- 
dungen,"  p.  300. 


FEDERAL   UNIONS  153 

In  its  normal  form  the  government  of  a  federal  union,  as  organic 
has  been  said,  acts  upon  individuals  rather  than  upon  the  ^J'*''*'^*" 
component  state  organizations;  its  will  is  exerted  immedi-  Federal 
ately  and  directly  upon  the  citizens  who  compose  it,  and  does 
not  reach  them  simply  through  the  medium  of  the  local  gov- 
ernments. Unlike  the  confederation,  there  is  a  general  as 
v/ell  as  a  local  citizenship,  and  all  persons  within  the  juris- 
diction of  the  central  government  owe  it  direct  and  imme- 
diate allegiance.  If  war  breaks  out  among  the  component 
states,  it  is  civil  war,  not  international  war.  The  com- 
ponent parts  of  a  federal  union  may  themselves  be  mon- 
archies, or  republics,  or  both;  or  they  may  be  mere  prov- 
inces or  colonial  dependencies,  possessing  a  wide  autonomy. 
Thus,  the  German  federal  empire  is  constructed  out  of 
kingdoms,  grand  duchies,  principalities,  and  free  cities. 
Switzerland  is  a  federation  of  cantons,  some  of  which  have 
governments  organized  on  the  representative  principle,  others 
being  pure  democracies.  The  federal  union  of  the  United 
States  is  composed  partly  of  republics  called  "  states,"  and 
partly  of  dependencies  called  "territories."  All  the  compo- 
nent members  (except  the  territories)  are  on  a  footing  of 
equality,  none  of  them  enjoying  special  privileges  such  as  are 
common  in  the  German  Empire.  In  Canada  and  some  of 
the  Latin-American  federations  the  component  parts  are 
simply  provinces  with  more  autonomy  than  belongs  to 
provinces  of  unitary  states. 

The  communities  of  which  federal  unions  are  composed  Compo- 
are  not  states  in  the  strict  sense  of  the  term,  though  in  Members 
most  federal  systems  popular  usage  designates  them  as  such.  °^  Federal 

T      •  1  1  .  1  .    .         Unions 

It  is  true,  however,  that  in  most  cases  these  communities  are  not 
were  originally  sovereign  and  independent  states,  and  when  g^^g*^^*^ 
they  became  federated  they  naturally  retained  the  name, 
a  good  deal  of  the  dignity,  the  historical  traditions,  and  even 
some  of  the  powers  of  sovereign  states.  But,  in  reality, 
by  the  act  of  federation  they  lost  their  sovereignty  and  with 
it  that  quality  which  most  distinguished  them  as   states. 


154     FORMS   OF   STATE   AND    ASSOCIATIONS   OF   STATES 


Contrary 
View 


Sover- 
eignty, 
not  Auton- 
omy, is 
the  Test  of 
State 
Existence 


By  merging  their  separate  existences  into  a  new  and  larger 
personality  they  became  in  strict  law  mere  political  units, 
non-sovereign  communities,  yet  withal  retaining  a  degree 
of  local  autonomy  and  of  political  importance  which  is  not 
enjoyed  by  the  administrative  subdivisions  of  a  unitary 
state.  Unlike  the  latter  they  retain,  as  of  right,  their  own 
constitutions,  their  own  political  arrangements,  and  the 
right  to  participate  in  the  collective  will. 

While  the  view  here  expressed  is  that  the  component  parts 
of  a  federal  union  are  not  in  reality  states,  many  writers, 
particularly  among  the  Germans,  hold  the  contrary  opin- 
ion. They  maintain  that  since  the  members  of  a  federal 
union  possess  all  the  attributes  and  characteristics  of  real 
states  except  that  of  full  sovereignty,  they  may  properly 
be  treated  as  states,  rather  than  as  mere  administrative  cir- 
cumscriptions. Among  the  German  writers  who  take  this 
view  are  Laband,  Jellinek,  and  Seydel.  Laband,  in  explain- 
ing the  juridical  nature  of  the  German  federal  empire, 
attributes  to  the  component  members  the  character  of  real 
states,  while  at  the  same  time  denying  to  them  the  posses- 
sion of  sovereignty.^  His  doctrine  is  based  on  the  view 
that  the  distinguishing  characteristic  of  the  state  is  not 
sovereignty,  but  rather  the  power  to  command  and  enforce 
obedience,  and  since  the  individual  members  of  a  federal 
union  possess  such  power,  they  may  be  rightfully  designated 
as  states.  But  it  may  well  be  observed  that  if  the  power 
to  lay  down  commands  and  compel  obedience  be  a  correct 
juristic  test  of  the  state  character,  it  is  difficult  to  avoid  the 
conclusion  that  a  province  or  a  municipality  has  an  equal 
claim  to  be  considered  a  state.  The  possession  of  mere 
local  autonomy  or  independence  of  action  in  certain 
matters  —  mere  power  in  a  local  organization  to  express  a 
will  and  enforce  its  commands  —  is  not  a  mark  of  statehood. 
If  a  non-sovereign  community  may  be  rightfully  treated  as 

•  "Staatsrecht  des  deutschen  Reiches,"  vol.  T,  pp.  75  ff. ;  see  also  Jellinek,  "Lehre 
von  den  Staatenverbindungen,"  pp.  298,  307. 


FEDERAL   UNIONS  155 

a  State,  the  distinction  between  states  and  mere  adminis- 
trative districts  disappears  or  becomes  very  indistinct 
indeed.  If,  iiowever,  by  the  power  to  command  and  com- 
pel obedience  is  meant  only  original,  underived,  and  inde- 
pendent power,  then  that  is  undoubtedly  sovereignty  —  a 
power  which  the  component  parts  of  federal  unions  certainly 
do  not  possess/  The  individual  members  of  a  federal 
commonwealth  have  no  power  to  determine  their  status  in 
the  union  of  which  they  are  a  part,  or  to  alter  their  relations 
with  one  another  or  with  the  central  organization,  or  to 
determine  the  extent  of  their  own  jurisdiction  or  sphere  of 
action.  That  power  in  the  last  analysis  lies  outside  their 
jurisdiction  and,  wherever  it  resides,  there  is  the  state. 
In  international  relations  they  are  non-entities;  in  internal 
affairs  they  are,  legally  speaking,  nothing  but  widely  autono- 
mous, largely  self-governing  parts  of  a  state.  Whatever  the 
historical  process  by  which  federal  unions  are  created, 
whether,  as  Lincoln  asserted  of  the  American  federal  republic, 
they  are  older  than  the  component  parts  or  the  reverse,  the 
parts  are  the  creations  of  the  will  of  the  people  as  a  whole, 
and  they  continue  to  exist  subject  to  that  will.  If  they 
existed  prior  to  the  establishment  of  the  union,  they  were 
re-created  by  the  act  through  which  it  came  into  existence 
and  were  reinvested  by  it  with  the  powers  which  they  sub- 
sequently possessed.^ 

'  Compare  Burgess  in  the  "Political  Science  Quarterly,"  vol.  Ill,  p.  128;  also 
Willoughby,  "The  Nature  of  the  State,"  pp.  245  ff . ;  and  Duguit,  "Droit  constitu- 
tionnel,"  p.  142. 

^  Compare  Le  Fur,  "L'fitat  federal,"  p.  680;  Duguit,  op.  cit.,  p.  142;  Borel, 
"fitude  sur  le  Souverainete,"  p.  103.  Woodrow  Wilson,  while  admitting  that  the 
members  of  federal  unions  have  lost  their  power  of  self-determination  with  respect  to 
their  law  as  a  whole,  and  that  their  sphere  is  limited  by  the  powers  of  the  state  super- 
ordinated  to  them,  asserts,  nevertheless,  that  they  are  states  because  "  their  powers  are 
original  and  inherent,  not  derivative ;  because  their  political  rights  are  not  also  legal 
duties ;  and  because  they  can  apply  to  their  commands  the  full  imperative  sanctions  of 
law."  "  Old  Master  and  Other  Essays,"  pp.  93-94.  But,  as  we  have  endeavored  to 
show  above,  their  powers  are  not  original  and  underived.  What  would  Mr.  Wilson 
say  of  the  powers  of  the  component  members  of  the  Canadian  federation,  where  the 
powers  of  the  provinces  are  delegated  rather  than  reserved  ? 


IS6      FORMS   OF    STATE    AND   ASSOCIATIONS   OF    STATES 


Theory 
that  the 
Compo- 
nent Mem- 
bers of  a 
Federal 
Union  are 
partly 
Sovereign 


Procedure 
by  which 
Federal 
Unions 
are  organ- 
ized 


Many  writers  have  attempted  to  explain  the  relation 
between  the  federal  union  and  its  parts  by  attributing  a 
portion  of  sovereignty  to  each.  This  theory  assumes  that 
sovereignty  is  capable  of  being  divided  and  distributed  at 
will.  According  to  this  view  the  state  formed  by  the  union 
of  the  parts  is  sovereign  in  respect  to  those  matters  which 
by  the  constitution  are  committed  to  its  care,  while  the 
component  members  are  equally  sovereign  with  respect  to 
those  matters  intrusted  to  them.  In  other  words,  each  is 
sovereign  within  its  constitutional  sphere.  This  view  has 
been  ably  defended  by  such  scholars  as  Waitz,  S.  Meyer, 
Schulze,  Bluntschli,  Gerber,  Riittiman,  Von  Mohl,  and 
Treitschke  in  Germany;  by  Freeman  and  Oppenheim  in 
England;  by  De  Tocqueville  and  Rivier  in  France;  and  by 
Kent,  Story,  Cooley,  and  others  in  America.  It  is  also 
the  view  that  has  been  uniformly  maintained  by  the  United 
States  Supreme  Court. ^  Since  a  discussion  of  this  ques- 
tion would  involve  a  consideration  of  the  theory  of  divided 
sovereignty,  it  will  be  passed  over  until  that  subject  is 
reached  in  the  course  of  this  work. 

Federal  states,  so  called,  have  usually  been  created  in 
one  of  two  ways :  first,  they  have  been  formed  by  a  volun- 
tary coalescing  of  a  number  of  sovereign  and  independent 
states;  or,  the  federal  system  has  been  imposed  from  with- 
out, as  where  a  unitary  state  has  established  federalism 
among  the  provinces  of  which  it  is  composed.  An  example 
of  the  latter  method  was  furnished  by  the  creation  of  a 
federal  republic  out  of  the  provinces  of  the  Empire  of  Brazil 
in  1889.  A  somewhat  similar  procedure  was  that  by  which 
the  colonial  provinces  of  British  North  America  and  the 
Australian  Colonies  were  federated  in   1867   and  1900  re- 


'  See,  for  example,  the  decision  of  the  court  in  the  License  Cases  (5  How.),  where  the 
general  government  and  those  of  the  states  were  spoken  of  as  "  separate  and  distinct 
sovereignties,  each  acting  separately  and  independently  of  the  other  within  their 
respective  spheres."  Compare  also  Lowell,  "Essays  on  American  Government," 
chapter  on  "  Sovereignty." 


FEDERAL   UNIONS  157 

spectively.  In  both  cases  the  federation  was  constructed, 
not  out  of  already  existing  independent  states,  as  was  the 
case  in  the  United  States  and  Germany,  but  out  of  a  group 
of  colonial  dependencies/ 

Two  conditions,  observes  Dicey,  must  be  present  in  the  Conditions 
formation  of  a  federal  union:  first,  there  must  be  a  body  trpedera- 
of  communities  (states,  cantons,  colonies,  provinces)  ^^^'^ 
connected  by  locality,  history,  race,  or  the  like,  capable  of 
bearing,  in  the  eyes  of  their  inhabitants,  an  impress  of 
common  nationality;  second,  there  must  exist  a  "very 
peculiar  sentiment"  among  the  inhabitants;  that  is,  they 
must  desire  union  without  unity,  must  be  able  to  adjust 
the  conflicting  ideas  of  union  and  separation  and  to  recon- 
cile the  advantages  of  national  union  with  the  disadvan- 
tages of  a  division  of  a  power  and  diversity  of  legislation. 
There  must  be  a  wish  to  form  for  many  purposes  a  single 
state  without  surrendering  the  individual  existences  of 
each.  A  "federal  state"  indeed  is  nothing  more  than  a 
"political  contrivance  intended  to  reconcile  national  unity 
and  power  with  the  maintenance  of  state  rights"  through 
an  adjustment  satisfactory  to  both  elements.^  The  his- 
tory of  federal  states  shows  that  they  have  generally  been 
formed  under  the  pressure  of  international  necessity  rather 
than  under  that  of  internal  needs. ^ 

Whatever  the  method  of  procedure  by  which  a  federal  constitu- 
union  is  established,  there  must  be  a  common  organic  act  Ylierli^ 
or  constitution  defining  the  relation  between  the  federated  Union 
state  and  the  parts  of  which  it  is  composed,  and  marking 
out  for  each  its  own  sphere  of  action.      This  constitution 
must  be  paramount  in  respect  to  the  constitutions  of  the 
component  members,   otherwise   the   maintenance   of   the 
federation  intact  will  be  impossible.     It  is  also  essential 

*  On  the  methods  of  forming  federal  unions  see  Brie,  "Theorie  der  Staatenver- 
bindungen,"  pp.  128  ff. ;  and  Jellinek,  "  Staatenverbindungen,"  pp.  253-275. 
^  "Law  of  the  Constitution"  (second  edition),  pp.  129-132. 
'  Compare  Martens,  "Traite  de  Droit  international,"  vol.  I,  p.  326. 


158      FORMS   OF    STATE   AND   ASSOCIATIONS   OF    STATES 


Need  of 
Common 
Tribunal 
to  inter- 
pret the 
Constitu- 
tion 


that  this  constitution  should  be  written.  The  foundations 
of  a  federal  state,  to  quote  Dicey  again,  rest  on  a  "compli- 
cated contract,"  and  the  arrangements  which  it  establishes 
cannot  safely  be  left  to  mere  understanding  or  convention. 
Its  articles  must  therefore  be  reduced  to  writing,  and  they 
ought  to  be  clearly  and  fully  stated  on  all  fundamental 
points  so  as  to  remove  the  possibility  of  misunderstanding. 
The  failure  to  do  this  in  the  constitution  of  the  United 
States  left  open  important  questions  which  became  the 
source  of  long  and  violent  controversy  and  ultimately  of 
civil  war.  These  articles  should  not  only  be  written,  but 
they  should  possess  a  certain  degree  of  rigidity ;  that  is,  they 
should  be  rendered  incapable  of  alteration  by  either  the 
central  or  local  governments,  but  should  be  alterable  only 
by  the  power  which  created  both  and  defined  their  spheres. 
Finally,  there  ought  to  be  a  common  tribunal  empowered 
to  interpret  the  prescriptions  of  the  federal  constitution, 
to  judge  of  the  limits  of  the  respective  spheres  of  the  central 
and  local  governments,  and  to  hold  in  restraint  the  ten- 
dencies of  each  to  encroach  upon  the  domain  assigned  by 
the  constitution  to  the  other.  This  tribunal  should  be 
empowered  to  determine  all  controversies  among  the 
component  states  themselves  as  well  as  between  them  and 
the  central  government,  and  it  ought  to  have  also  the 
power  to  set  aside  the  provision  of  any  local  constitution 
or  law  which  is  inconsistent  with  the  constitution  or  laws 
of  the  union. 


Charac- 
teristics 
of  Part- 
sovereign 
States 


VIII.     PART-SOVEREIGN    STATES 

Many  writers,  as  has  been  said,  treat  as  states  for  limited 
purposes  certain  communities  not  in  the  possession  of  full 
sovereignty,  and  hence  they  do  not  consider  sovereignty 
an  essential  mark  of  the  state,  at  least  for  international 
purposes.^     Communities  of  this  kind,  while  dependent  to 

'Compare  Westlake,  for  example,  "International  Law,"  vol.  I,  p.  21;  also 
Hall,  who  recognizes  states  "in  the  possession  of  imperfect  independence,"  "  Inter- 


PART-SOVEREIGN   STATES  159 

a  greater  or  less  extent  upon  other  states,  nevertheless 
usually  possess  large  powers  of  local  self-government  and 
a  limited  international  personality.  But  if  we  observe 
strictly  the  test  laid  down  in  an  earlier  chapter  for  deter- 
mining the  state  character,  we  cannot  regard  such  communi- 
ties as  states,  but  only  as  dependencies  or  parts  of  other 
states.  The  designation  of  states  as  part-sovereign  is  based 
upon  the  assumption  that  sovereignty  is  capable  of  being 
divided  —  a  theory  which  the  best  writers  regard  as  quite 
inadmissible,  and  the  fallacy  of  which  we  shall  endeavor  to 
establish  in  our  chapter  on  sovereignty. 

Examples  of  so-called  part-sovereign  states,  Unterstaaten  Examples 
as    the    Germans    call    them,    are:     (i)     the    component  soverdgn 
members   of   federal   unions;    (2)    communities  under  the  states 
suzerainty  of  other  states;  and  (3)  communities  under  the 
protection  of  other  states.     The  degree  of  autonomy  pos- 
sessed by  each  and  its  status  as  an  international  entity 
depend   upon   the  particular  circumstances  of  each  case, 
there  being  no  general  rule  governing  the  matter. 

Regarding  the  first  class  of  so-called  part-sovereign  states  (i)  Mem- 
—  the    members    of    federal    unions  —  we    have    already  Federal 
pointed  out  that   rarely  do    they  possess  even   the  most  Anions 
limited  international  personality.^    Although  they  are  often 
called  states  and  regarded  as  real  states  by  some  German 
writers  of  high  standing,  yet  the.  weight  of  the  best  scientific 
opinion  is  adverse  to  such  a  view. 

The  second  group  of  so-called  part-sovereign  states,  (2)  Suze- 
namely,  communities  under  the  suzerainty  of  other  states,  ^unities^ 
are,  says  Hall,  portions  of  states  which  during  a  process  of 

national  Law,"  sec.  4.  See  also  Oppenheim,  "International  Law,"  vol.  I,  pp.  loi- 
103 ;  Despagnet,  "  Cours  de  Droit  international  public,"  pp.  136-145 ;  Nys,  op.  cit., 
vol.  I,  pp.  349-357;  and  Carnazza-Amari,  op.  cit.,  vol.  I,  pp.  322-367. 

*  An  exception  is  found  in  the  power  of  the  members  of  the  German  Empire  to 
send  and  receive  diplomatic  envoys,  to  grant  exequaturs  to  foreign  consuls  within 
their  territories,  and  to  enter  into  conventions  with  foreign  powers,  concerning 
matters  not  falling  within  the  jurisdiction  of  the  imperial  government.  Moore, 
"Digest  of  International  Law,"  vol.  I,  p.  25. 


i6o      FORMS   OF    STATE   AND   ASSOCIATIONS   OF    STATES 

gradual  disruption  or  by  the  grace  of  the  sovereign  have 
acquired  certain  of  the  powers  of  an  independent  community, 
such  as  that  of  making  commercial  conventions  or  of  con- 
ferring their  exequaturs  upon  foreign  consuls.*  The  para- 
mount state  is  called  the  suzerain,  and  its  relation  to  the 
subject  state  is  described  by  the  term  "suzerainty."  *  The 
relation  between  the  suzerain  state  and  the  vassal  state 
depends  upon  the  circumstances  of  the  particular  case. 
In  general  it  may  be  said  that  the  vassal  community  has 
only  such  rights  as  have  been  expressly  granted  to  it  by 
the  paramount  state.  It  always  has  a  certain  international 
capacity,  but  is  subject  to  a  greater  or  less  extent  to  the 
paramount  state  in  the  management  of  its  foreign  affairs. 
It  is,  however,  generally  independent  of  foreign  control  as 
regards  its  internal  affairs.  In  the  conduct  of  the  foreign 
relations  of  the  dependency  the  suzerain  may  have  the  full 
power  of  initiation,  or  partial  initiation,  or  only  the  nega- 
tive power  of  veto  over  the  acts  of  the  vassal  state. 
Examples  Examples  of  communities  under  the  control  of  a  suzerain  are 
rainties"  Egyptaud,  Until  recently,  Bulgaria.  Egypt  is  a  tributary  and 
vassalstatetheoretically  under  the  suzerainty  of  the  Ottoman 
Porte,  but  in  fact  it  is  under  the  administration  of  England. 
It  has  a  hereditary  ruler  of  its  own,  but  he  receives  his  in- 
vestiture from  the  sultan.  It  sends  and  receives  consuls, 
who  may  bear  the  added  title  of  diplomatic  agent,  and  has 
the  power  to  conclude  commercial  and  postal  treaties  with 
foreign  states  without  the  consent  of  the  suzerain.  Bul- 
garia, by  the  Treaty  of  Berlin,  1878,  was  made  a  "tributary 
and  autonomous  principality"  under  the  suzerainty  of 
Turkey.  Like  Egypt,  it  had  the  power  to  send  and  receive 
consuls  and  diplomatic  agents,  and  in  1885  it  waged  war 
against  Servia  without  the  consent  of  Turkey,  although  its 
right  to  do  so  was  denied.  Bulgaria,  however,  has  recently  de- 
clared its  independence  of  Turkey.    Moldavia  and  Wallachia 

*  "  International  Law,"  3d  ed.,  p.  31. 

*  Moore,  "  Digest  of  International  Law,"  sec.  13. 


tected 
States 


PART-SOVEREIGN   STATES  i6i 

were  also  formerly  under  the  suzerainty  of  Turkey.  The 
former  South  African  Republic  under  the  suzerainty  of  Great 
Britain  was  another  example  of  this  type  of  part-sovereign 
state.  By  a  treaty  of  February  27, 1884,  with  Great  Britain, 
it  engaged  to  conclude  no  treaty  with  any  other  power 
than  the  Orange  Free  State  without  approval  by  the  crown 
of  England.  The  suzerain  status  is  usually  temporary  and 
is  generally  terminated  by  the  action  of  the  vassal  in  throw- 
ing off  its  dependence,  as  Roumania  did  in  1878  and  as 
Bulgaria  did  in  1908  ;  or  by  conquest  and  annexation 
by  the  suzerain,  as  was  the  case  with  the  South  African 
Republic  during  the  late  Boer  War.* 

The  third  form  of  the  so-called  part-sovereign  state  Is  (3)  Pro 
the  "protected  state."  "For  the  purposes  of  inter- 
national law,"  says  a  noted  authority,  "a  protected 
state  is  one  which,  in  consequence  of  its  weakness,  has 
placed  itself  under  the  protection  of  another  power  on  de- 
fined conditions  or  has  been  so  placed  under  an  arrangement 
between  powers  the  interests  of  which  are  involved  in  the 
disposition."  ^  Unlike  a  community  under  the  suzerainty 
of  another  state,  the  rights  of  a  protected  state  are  rather 
residuary  than  delegated  in  their  nature,  and  the  presumption 
therefore  is  in  favor  of  any  international  capacity  claimed 
by  it.  Unlike  a  suzerain  community,  also,  a  protected 
state  always  retains  a  certain  international  capacity  and  is, 
therefore,  a  subject  of  international  law.  The  establish- 
ment of  a  protectorate  usually  takes  place  when  a  weak 
state  places  itself  under  the  guardianship  and  protection  of 
a  more  powerful  state,  handing  over  to  the  latter  the 
management  of  its  more  important  foreign  relations. 

'  For  the  literature  dealing  with  suzerainties,  see  Hall,  op.  cil.,  p.  31 ;  Nys, 
op.  cit.,  vol.  I,  pp.  357-364 ;  Oppenheim,  "  International  Law,"  vol.  I,  pp.  133-137; 
Westlake,  "International  Law,"  vol.  I,  pp.  25-27;  Lawrence,  " Principles  of  Inter- 
national Law,"  sec.  50;  Wheaton,  "Elements,"  sec.  37;  Taylor,  "International 
Public  Law,"  sees.  140-144;   and  Boghitchevitch,  " Halbsouveranitat." 

^  Hall,  "  International  Law,"  sec.  4. 

POL.  SCI.  —  II 


1 62      FORMS   OF    STATE   AND   ASSOCIATIONS   OF   STATES 


Examples 
of  Pro- 
tectorates 


Examples 
of  Pro- 
tected 
States 


The  most  recent  example  of  the  kind  was  the  establish- 
ment of  a  protectorate  by  Japan  over  Korea  in  1904.  The 
degree  of  the  control  exercised  by  the  protecting  state 
varies  widely  and  depends  upon  the  particular  facts  of  each 
case,  the  terms  and  conditions  upon  which  the  protectorate 
is  maintained  being  embodied  in  a  treaty  between  the 
protected  state  and  the  protector.  Some,  like  the  French 
protectorate  of  Indo-China,  are  nothing  more  than  colo- 
nies; while  others  have  practically  complete  control 
over  their  internal  and  external  affairs.  The  citizens  or 
subjects  of  a  protected  state  retain  their  own  distinct  na- 
tionality, and  must  remain  neutral  in  a  war  between  the 
protecting  state  and  a  third  power.  In  the  case  of  the 
Ionian  Islands,  which  were  under  the  protection  of  Great 
Britain  from  1815  to  1863,  the  control  exercised  by  the 
protector  included  only  the  management  of  the  foreign 
relations  of  the  islands  and  the  appointment  of  the  execu- 
tive. The  islands  were  declared  to  be  a  "free  and  inde- 
pendent state,"  were  not  included  in  British  treaties  unless 
especially  named,  received  consuls  from  other  states,  and 
had  their  own  commercial  flag.^ 

The  only  protected  states  in  Europe  to-day  are  the  petty 
republics  of  Andorra,  under  the  joint  protection  of  France 
and  Spain,  and  of  San  Marino,  under  the  protection  of 
Italy,  and  possibly  the  principality  of  Monaco,  which  is 
theoretically  under  the  protection  of  Italy.  Inasmuch, 
however,  as  the  right  of  protection  in  the  latter  case  has 
not  been  exercised  since  the  establishment  of  the  Italian 
kingdom,  Monaco  is  claimed  by  some  to  be  an  independent 
state.^  In  Africa  there  are  various  petty  states  under  the 
protection  of  European  powers,  among  which  may  be  men- 
tioned Zanzibar  and  Tunis,  under  the  protection  of  Great 
Britain  and  France  respectively.      Until  1896  Madagascar 

'Hall,   op.  cit.,  p.   30;   Wheaton   (Lawrence's  ed.),  p.    6i ;   Twiss,   "Law   of 
Nations,"  ch.  4;  Philliraore,  "  LUernational  Law,"  vol.  I,  sec.  77. 
'  Cf.  Oppenheim,  op.  cit.,  vol.  I,  p.  139 ;  Hall,  op.  cit.,  p.  31. 


NEUTRALIZED   STATES  163 

was  a  French  protectorate,  but  in  that  year  it  was  annexed 
to  France  as  a  colony/ 

IX.     NEUTRALIZED   STATES 

A  State  whose  independence  and  integrity  have  been 
guaranteed  by  the  joint  action  of  other  states  and  placed 
in  a  condition  in  which  it  is  forbidden  to  engage  in  offensive 
war  is  said  to  be  neutralized.  Its  immunity  from  attack 
on  the  part  of  other  states  is  usually  guaranteed  by 
way  of  compensation  for  the  restriction  placed  upon  its 
freedom  of  action  with  regard  to  making  offensive  war. 
The  status  of  neutralization  may  be  conferred  upon  a  weak 
state  at  its  own  request  as  a  means  of  protection  against 
ambitious  and  unscrupulous  neighbors;  or  it  may  be  con- 
ferred without  regard  to  its  own  wishes  by  other  states  out 
of  considerations  affecting  the  general  peace  or  the  balance 
of  power.  Small  states  so  geographically  situated  that 
they  are  in  danger  of  being  overrun  by  contending  armies 
and  of  having  their  neutrality  otherwise  disregarded  by 
opposing  belligerents,  are  those  which  have  usually  been 
neutralized  by  the  collective  action  of  other  states.  The 
method  by  which  neutralization  takes  place  is  usually  by 
internationaJ  treaty  between  the  powers  concerned.  The 
state  so  neutralized  must  abstain  from  engaging  in  hostili- 
ties against  other  states  except  as  a  matter  of  defense  and 
must  avoid  any  act   which  would  involve  it  in  war  with 

*  For  the  literature  of  protectorates  see  in  addition  to  the  authorities  cited:  Des- 
pagnet,  "  Essai  sur  les  Protectorats  "  (1896) ;  Boghitchevitch,  "  Halbsouveranitat " 
(1903);  Heilborn,  "Das  volkerrechtliche  Protectorat"  (1891);  Carnazza-Amari, 
op.  cit.,  vol.  I,  pp.  265-269;  Engelhardt,  "  Les  Protectorats"  ;  Le  Furund  Posener, 
op.  cit.,  sec.  8;  Wheaton,  sec.  13;  Rivier,  "Principes,"  vol.  I,  pp.  79-93;  Oppen- 
heim,  sec.  92;  Nys,  op.  cit.,  pp.  364-366;  Moore,  "Digest,"  sec.  14;  "Colonial 
Systems  of  the  World  "  (published  by  the  U.  S.  Bureau  of  Statistics,  Treasury  De- 
partment, 1898);  Pradier-Fodere,  "Traite  de  Droit  international  public,"  vol. 
I,  pp.  176  ff.  See  also  an  article  entitled  "  Uber  den  Staatsbegrifif "  by  Werner 
Rosenberg,  "  Zeitschrift  fiir  die  gesamte  d.  Staatswissenschaft,"  1909,  Erstes  Heft, 
pp.  22-31. 


164     FORMS   OF   STATE   AND    ASSOCIATIONS   OF   STATES 


Examples 
of  Neu- 
tralized 
States 


another  state.  In  all  other  respects  it  is  fully  sovereign 
and  independent,  and  can  enter  into  treaties  of  all  kinds, 
except  possibly  those  of  alliance  and  guarantee,  and  can 
of  course  maintain  armies  and  navies  for  purposes  of 
defense/ 

Examples  of  neutralized  states  are:  Switzerland,  whose 
permanent  neutrality  was  recognized  and  guaranteed  by 
the  Powers  through  the  act  of  the  Vienna  Congress  in  18 15; 
Belgium,  whose  neutrality  was  guaranteed  by  the  Treaty 
of  London  in  1831  and  renewed  by  a  similar  treaty  in  1839; 
the  Grand  Duchy  of  Luxembourg,  neutralized  by  the 
Treaty  of  London  in  1867;  and  the  Congo  Free  State, 
whose  neutrality  the  signatory  powers  of  the  General  Act 
of  the  Berlin  Congo  Conference  of  1885  agreed  to  "respect" 
provided  the  power  in  possession  of  the  Congo  territory 
should  proclaim  its  neutrality.  This  the  king  of  the  Bel- 
gians did,  and  his  act  was  recognized  by  the  powers.  Fi- 
nally, by  a  treaty  signed  at  Christiania,  November  2,  1907, 
Great  Britain,  France,  Germany,  and  Russia,  "animated  by 
a  desire  to  secure  to  Norway  .  .  .  her  independence  and 
territorial  integrity,  as  also  the  benefits  of  peace,"  obligated 
themselves  to  "recognize  and  respect"  the  integrity  of 
Norway,  and  agreed  in  case  the  integrity  of  the  Norwegian 
kingdom  was  "threatened  or  impaired  by  any  power 
whatsoever,"  they  would  afford  the  Norwegian  govern- 
ment their  support  with  a  view  to  safeguarding  the  integ- 
rity. Norway  was  also  a  party  to  the  treaty,  and  agreed 
not  to  cede  any  portion  of  its  territory  to  any  power.^ 


'  An  exception  is  found  in  the  treaty  by  which  Luxembourg  was  neutralized.  This 
treaty  forbids  the  maintenance  of  any  fortress  or  the  keeping  of  any  armed  force 
except  what  may  be  necessary  for  the  maintenance  of  domestic  order  and  safety. 

*  For  the  literature  relating  to  neutralized  states  see  Despagnet,  "  Cours  de 
Droit  international  public,"  pp.  145-162;  Nys,  op.  cii.,  vol.  I,  pp.  379-398;  Op- 
penheim,  vol.  I,  pp.  140-146;  Moore,  "Digest,"  vol.  I,  sec.  12;  Holland,  "Studies 
in  International  Law,"  pp.  270-272;  Rivier,  "Principes, "  vol.  I,  sec.  7;  Piccioni, 
"Essai  sur  la  Neutrality  perpetuelle";  Regnalt,  "Des  effets  de  la  Neutralite  per- 
petuelle";   Tswettcoff,  "De  la  Situation  juridique  des  Etats  neutralises." 


INTERNATIONAL   UNIONS  165 


X.     INTERNATIONAL    UNIONS 

For  the  accomplishment  of  certain  common  objects  and  juristic 
the  promotion  of  mutual  interests,  states  not  infrequently  union °* 
associate  themselves  by  formal  agreement  into  unions 
(Staatenvereine,  Staatengemeinschaften) .  Such  unions  in  the 
past  have  been  numerous  and  diverse  in  character.  They 
have  differed  not  only  as  regards  their  legal  nature,  but  also 
as  regards  their  purposes,  objects,  and  duration.  Juris- 
tically  considered,  the  basis  of  the  union  may  be:  first,  the 
principle  of  equality  or  coordination,  according  to  which 
each  member  retains  its  sovereignty  and  independence  un- 
restricted; second,  the  principle  of  inequality  according  to 
which  some  of  the  members  stand  in  the  relation  of  superior- 
ity to  others,  the  latter  occupying  a  status  of  subordination ; 
and,  third,  the  principle  of  equality  among  the  associated 
members,  all  of  which  have  the  same  power,  but  are  subor- 
dinate to  a  central  government/ 

According  to  Brie  and  Jellinek  international  unions  may  Unor- 
again  be  classified  as  unorganized  and  organized.     An  unor-  fnd'or- 
ganized  union  is  one  in  which  more  or  less  permanent  rela-  gamzed 
tions  are  established  for  the  promotion  of  common  policies 
or  the  maintenance  of  certain  relations,  but  in  which  there 
is  no  common  governmental  organization  for  the  exercise  of 
a  common  will,  or  for  purposes  of  administration.     Jellinek 
enumerates  as  examples  of   unorganized  unions:    alliances 
of  various  kinds,  leagues  of  friendship,  loosely  connected 
federations,  and  a  certain  kind  of  composite  state  which  he 
describes  by  the   term  Staatenstaat ;  that    is,   a  so-called 
state  composed  not  of  individuals,  but  of  inferior  states, 
which  receive  their  powers  from  a  superior.     Examples  of 
the  Staatenstaat  were  the  feudal  states  of  the  Middle  Ages 
and  the  old  German  Empire  after  the  Peace  of  Westphalia.^ 

'  Brie,  "Theorie  der  Staatenverbindungen,"  p.  25.  See  also  Jellinek,  "Lehre 
von  den  Staatenverbindungen,"  pp.  58  ff. 

^  For  Jellinek's  conception  of  the  Staatenstaat  ?,e.e  his  "Staatenverbindungen,"  pp. 
137  ff.  See  also  Gareis,  "  Allgemeine  Staatslehre  "  in  Marquardsen's  Handbuch, 
vol.  I,  sec.  39,  for  a  discussion  of  the  Staatenstaat. 


1 66      FORMS   OF   STATE   AND    ASSOCIATIONS   OF   STATES 


Inter- 
national 
Adminis- 
trative 
Unions 


Other  examples  were  the  Christian  states  of  the  Moham- 
medan Empire;  the  vassal  states  of  the  Ottoman  Porte, 
such  as  Egypt  and  Tunis;  such  relationships  as  those  be- 
tween the  United  States  and  the  Indian  tribes,  and  between 
Nicaragua  and  the  Mosquito  Coast;  the  tributary  states 
of  Asia;  the  native  states  of  India;  the  relation  of  Holland 
to  Java;   the  relation  between  China  and  Siam;  etc.* 

The  organized  union  differs  from  the  unorganized  union 
in  possessing  the  element  of  permanency,  an  independent 
administrative  organ,  and  a  common  will.  Examples  of 
this  type  of  union  are:  (i)  the  various  international  admin- 
istrative unions;  (2)  real  unions;  (3)  confederations  {Staat- 
enbunden) ;  and  (4)  federal  unions  {Bundesstaaten) .  Of 
these  all  except  the  first  mentioned  have  already  been 
described. 

Among  the  more  important  international  administrative 
unions  may  be  mentioned:  (i)  the  International  Postal 
Union,  established  by  treaty  in  1874,  fo^  the  creation 
of  a  single  postal  territory  for  the  reciprocal  exchange 
of  mails  between  the  member  states;  (2)  the  Inter- 
national Rhine  Navigation  Commission,  created  by  the 
Vienna  Congress  for  the  enforcement  of  common  regu- 
lations governing  the  navigation  of  the  river  Rhine; 
(3)  the  European  Danube  River  Commission,  created  in 
1856  by  the  Treaty  of  Paris  for  a  similar  purpose  and 
having  permanent  offices  at  Galatz;  (4)  the  International 
Telegraph  Union,  created  in  1865  by  the  Conference  of 
the  Powers  at  St.  Petersburg;  (5)  the  International 
Metric  Union,  created  in  1875,  and  having  as  its  common 
organ  the  International  Bureau  of  Weights  and  Measures, 
with  permanent  offices  at  Sevres,  near  Paris;  (6)  the 
International  Union  of  Railway  Freight  Transit,  created  in 
1893,  and  having  a  central  bureau  at  Berne;  (7)  the  In- 
ternational Union  for  the  Protection  of  Literary  and  Ar- 
tistic Property,  with  a  permanent  central  bureau  at  Berne; 

*  Jellinek,  "Staatenverbindungen,"  pp.  137-157. 


INTERNATIONAL   UNIONS  167 

(8)  the  International  Association  for  the  Protection  of 
Labor,  with  an  international  office  at  Berne;  (9)  the  In- 
ternational Sugar  Commission,  with  a  bureau  at  Brussels; 
(10)  the  International  Commission  of  Insurance,  with  a 
bureau  at  Brussels;  (11)  the  International  Prison  Asso- 
ciation, with  a  secretariat  at  Berne;  (12)  the  International 
Sanitary  Association,  with  an  office  at  Paris;  (13)  the  In- 
ternational Bureau  of  American  Republics  at  Washing- 
ton, created  in  1890  and  reorganized  in  1906;  (14)  the 
Congress  of  Hygiene  and  Demography,  with  a  permanent 
commissioner  at  Brussels;  (15)  the  International  Seismo- 
logical  Association;  (16)  the  International  Office  of  Public 
Health,  created  by  an  international  convention  signed 
at  Rome  in  December,  1907;  and  (17)  the  International 
Institute  of  Agriculture  at  Rome,  created  by  an  inter- 
national convention  signed  at  Rome,  July  7,  1905.  It  is 
announced  that  an  International  Bureau  of  Wireless  Teleg- 
raphy is  to  be  established  in  the  near  future.  Most  of 
these  unions  have  been  created  by  international  agree- 
ment, and  some  of  them,  like  the  Postal  Union,  embrace 
practically  all  the  civilized  states  of  the  world.  Provision 
is  made  in  the  acts  creating  some  of  them  for  the  holding 
of  congresses  at  periodic  intervals  at  which  each  member 
state  may  be  represented  and  entitled  to  one  vote.  Thus 
a  congress  representing  the  Telegraph  Union  is  held  every 
three  years;  the  Postal  Congress  meets  every  five  years; 
the  Union  of  Weights  and  Measures  holds  a  congress  every 
six  years.  Most  of  them  maintain  a  centra!  administrative 
bureau  or  office,  usually  at  Berne.  The  river  commissions 
have  inspectors  to  supervise  the  execution  of  common 
arrangements,  and  the  common  expenses  are  borne  by  the 
members  of  the  union  in  some  proportion  agreed  upon.* 

^  See  a  valuable  article  by  Paul  S.  Reinsch  entitled  "International  Unions  and 
their  Administration,"  in  the  "  American  Journal  of  International  Law,"  for  July, 
1907.  See  also  G.  Moynier,  "Les  bureaux  internationaux"  (1892);  Deschamps, 
"LesofEcesinternationaux  ";  and  Held,  "System  der  Verfassungsrecht,"  ch.  15. 


CHAPTER   VI 

FORMS   OF   GOVERNMENT 

Suggested  Readings:  Aristotle,  "Politics,"  III,  6;  Bentham, 
*' Fragment  on  Government,"  Works,  vol.  I.  pp.  272-276;  Blunt- 
SCHLI,  "AUgemeine  Staatslehre,"  bk.  VI,  chs.  19-23;  Bornhak, 
"  AUgemeine  Staatslehre,"  pp.  25-62;  Bradford,  "Lessons  of  Popular 
Government,"  vol.  I;  chs.  2,  3,  14;  vol.  II,  ch.  28;  Brougham, 
"The  British  Constitution,"  Works,  vol.  XI,  chs.  i  and  2;  Jethro 
Brown,  "  The  Austinian  Theory  of  Law,"  ch.  4;  Burgess,  "  Political 
Science  and  Constitutional  Law,"  vol.  II,  bk.  Ill,  chs.  i  and  2;  De 
Parieu,  "Principes  de  la  Science  politique,"  chs.  1-5;  De  Tocque- 
viLLE,  "Democracy  in  America,"  pt.  II,  bks,  II  and  III;  Duguit, 
"Droit  constitutionnel,"  pt.  I,  sees.  51,  52,  58,  59,  61;  also  his 
"L'Etat,  les  Gouvernants  et  les  Agents,"  ch.  3;  Esmein,  "Droit 
constitutionnel,"  pt.  I,  chs.  2,  5;  "  FederaHst,"  Nos.  10,  14,  39; 
Gareis,  "Allgemeine  Staatslehre,"  in  Marquardsen's  "Handbuch 
des  bflfentlichen  Rechts,"  vol.  I,  sees.  12-21,  38-42;  Gerber,  "  Grund- 
ziige  des  deutschen  Staatsrechts,"  sees.  24-34;  Laveleye,  "Le 
Gouvernement  dans  la  Democratie,"  vol.  I,  bks.  V,  VI ;  vol.  II,  bks. 
X,  XI;  Leacock,  "Elements  of  Pohtical  Science,"  pt.  I,ch.  7;  Lecky, 
"Democracy  and  Liberty,"  vol.  I,  chs.  i,  3;  Lewis,  "Use  and  Abuse 
of  Political  Terms,"  pp.  58-97;  Locke,  "Two  Treatises  of  Govern- 
ment," sees.  132-133;  Maine,  "Popular  Government,"  essays  I,  II; 
Meyer,  "Deutsches  Staatsrecht,"  sees,  i,  8,  9,  12,  13,  14;  Mill, 
"Representative  Government,"  chs.  1-3,  6-7,  8;  Moreau,  "Precis 
61ementaire  de  Droit  constitutionnel,"  pp.  26-40;  Paley,  "Political 
and  Moral  Philosophy,"  bk.  VI,  ch.  6;  Pradier-Fodere,  "Principes 
generaux  de  Droit  de  Politique  et  de  Legislation,"  chs.  9  and  10; 
Prins,  "Del'Esprit  du  Gouvernement  democratique,"  chs.  i  and  2; 
Rehm,  "Allgemeine  Staatslehre,"  sees.  39-48,  84-85;  Roscher, 
"PoHtik,"  bk.  I,  ch.  2;  bk.  II,  ch.  5;  bk.  IV,  ch.  2;  Rousseau,  "Con- 
trat  social,"  bk.  II,  chs.  3-9;  Sidgwick,  "Elements  of  Politics,"  chs. 
26-30;  Vacherot,  "La  Democratie,"  especially  chs.  i  and  2;  Waitz, 
"Grundziige  der  Politik,"  pp.  153-219;  Willoughby,  "Nature  of 
the  State,"  ch.  13;  Woolsey,  "PoUtical  Science,"  vol.  I,  pt.  Ill, 
chs.  2  and  3;  vol.  II,  pt.  Ill,  chs.  4,  6,  7,  8;  Zacharia,  "Vierzig 
BUcher  vom  Staate,"  bks.  16-19. 

168 


MONARCHIES,   ARISTOCRACIES,   AND   DEMOCRACIES      169 


I.    MONARCHIES,    ARISTOCRACIES,    AND   DEMOCRACIES 

Having  examined  the  several  forms  of  states  and  asso-  principle 
ciations  of  states,  we  come  now  to  consider  the  forms  of  fiction'" 
government,  keeping  in  mind  that  government  is  not  the 
state,  but,  as  Francis  Lieber  has  remarked,  merely  the 
instrument  or  contrivance  through  which  the  state  acts  in 
all  cases  in  which  it  does  not  act  by  direct  operation  of  its 
sovereignty/  Following  the  same  principle  observed  in 
the  classification  of  states,  namely,  the  number  of  persons 
in  whom  the  supreme  power  is  vested,  we  shall  find  that 
governments  may  be  classified  as  monarchical,  aristocratic, 
and  democratic.^  If  the  supreme  governing  authority  is 
vested  in  a  single  person,  however  numerous  his  subordi- 
nates, the  form  of  government  is  said  to  be  monarchical.' 
Popular  usage,  however,  considers  any  government  having 
a  hereditary  executive  to  be  a  monarchy,  even  though  its 
legislative  department  rests  upon  a  popular  basis.  In 
short,  popular  usage  makes  the  test  the  nature  of  the 
executive  tenure  and  the  tenure  of  the  titular  executive  at 
that."*     Thus  most  of  the  governments  of  Europe  are  com- 

>  "Political  Ethics,"  vol.  I,  p.  238. 

^  The  classification  of  governments  with  respect  to  whether  the  controlling  power 
is  in  the  hands  of  one  man,  a  few  or  the  many,  is,  says  Willoughby  ("Political 
Theories  of  the  Ancient  World,"  p.  108),  as  old  as  Pindar  and  Herodotus.  See  also 
Woolsey, "  Political  Science,"  vol.  I,  pp.  466-468.  It  was,  as  we  have  seen,  Aris- 
totle's basis  of  classification  for  states,  though  there  is  a  difference  of  opinion  as  to 
whether  his  classification  was  intended  to  be  that  of  states  or  governments.  See  his 
"  Politics,"  III,  6. 

'  Manifestly  no  satisfactory  definition  of  monarchy  can  be  framed.  The  above 
definition,  for  example,  will  not  fit  the  numerous  plural  monarchies  to  be  referred 
to  below.  On  the  other  hand  it  describes  pretty  accurately  some  republics  which 
have  at  their  head  a  single  executive. 

*  Some  political  writers  of  high  standing  accept  this  test  as  proper.  Duguit,  for 
example  ("Droit  const.,"  p.  375),  defines  monarchy  as  "that  form  of  government 
in  which  the  chief  of  state  is  hereditary."  According  to  him  the  hereditary  tenure 
of  the  executive  is  the  mark  which  distinguishes  a  monarchy  from  a  republic,  the 
latter  being  defined  by  him  as  a  form  of  government  in  which  the  chief  of  state  is 
not  hereditary  but  elective.  Jellinek  ("Recht  des  mod.  Staates,"  p.  653)  criticises 
such  a  distinction  as  an  abstraction  and  shows  that  the  correct  test  is  not  the  nature  of 


170  FORMS   OF    GOVERNMENT 

monly  styled  monarchies,  when  in  reality  only  the  execu- 
tive part  of  the  government  is  constituted  on  the  monarch- 
ical principle.  The  modern  term  "monarchy,"  as  Sidgwick 
observes,  is  largely  used  to  denote  governments  in  which 
only  a  share  of  power  is  left  to  the  single  individual  called 
the  monarch/ 

If  the  supreme  governing  authority  is  intrusted  to  a 
small  group  or  class  of  the  population,  the  government  is 
said  to  be  aristocratic.  It  is  a  government  in  which  only 
a  minority  of  the  citizens  have  a  share,  the  rest  of  the 
population,  as  Montesquieu  remarks,  being  in  respect  to 
the  former  the  same  as  the  subjects  of  a  monarch  in 
regard  to  the  sovereign.^  If  the  great  mass  of  the  adult 
male  citizens  share  in  T:he  government,  either  through 
the  choice  of  its  agents,  through  participation  in  the 
enactment  of  law  by  means  of  the  so-called  initiative  or 
referendum,  or  through  a  popular  assembly  of  all  the 
citizens,  we  have  a  democratic  form  of  government  or  a 
democracy.  Professor  Seeley  defined  democracy  more 
broadly  as  a  government  in  which  every  one  has  a  share.' 
John  Austin  said  it  signified  any  government  in  which  the 
governing  body  is  a  comparatively  large  fraction  of  the 
entire  nation.  Sir  Henry  Maine  said  it  could  be  most  ac- 
curately described  as  "inverted  monarchy."  * 

the  executive  tenure,  but  the  number  of  persons  in  whom  the  governing  power  is 
vested.  Furthermore,  as  will  be  shown  later,  there  have  been  numerous  examples 
of  elective  monarchies  as  well  as  hereditary  republics,  such  as  the  Netherlands  in 
the  seventeenth  and  eighteenth  centuries. 

'"Elements  of  Politics,"  p.  607.  Bernatzik  {Republic  und  Monarchic)  con- 
tends that  the  true  criterion  is,  that  in  a  monarchy,  whether  absolute  or  limited, 
hereditary  or  elective,  the  head  of  the  state  has  a  subjective  right  to  his  office 
irrespective  of  the  method  of  his  selection.  The  head  of  a  republic,  however,  has 
no  such  right  to  his  office. 

*  "  Esprit  des  Lois,"  bk.  II,  ch.  3.     Cf .  also  Aristotle,  "  Politics,"  IV,  7. 
'  "  Introduction  to  Political  Science,"  p.  324. 

*  "  Popular  Government,"  p.  59.  Thomas  Jefferson  conceived  democracy  to  be 
government  by  the  citizens  in  mass,  acting  directly  and  personally  according  to  rules 
established  by  the  majority  (Works,  vol.  X,  p.  28).  A  democracy,  said  Hamilton,  is  a 


MONARCHIES,   ARISTOCRACIES,   AND   DEMOCRACIES      171 

The  classification  of  governments  as  monarchical,  aris-  Non- 
tocratic,  and  democratic  is  identical  with  the  classification  o*J*sta*te 
of  states  given  in  the  preceding  chapter,  but  it  does  not  andcov- 

r    ,,  1  1        r  r  •  •  •      crnmentai 

follow  that  the  form  of  government  m  any  given  state  is  Forms 
necessarily  identical  with  the  form  of  state,  though  usually 
they  are  similar  in  form  and  spirit.  A  democratic  state, 
for  example,  is  apt  to  have  a  government  in  which  demo- 
cratic or  popular  elements  predominate.  But  while  this 
is  the  natural  and  usual  condition,  it  is  quite  possible 
that  a  democratic  state  should  have  a  government  organ- 
ized upon  an  aristocratic  basis.  Indeed,  it  is  difticult  to 
see  why  such  a  system  is  not  the  nearest  approach  to 
the  ideal,  provided  the  aristocracy  is  one  of  real  merit 
rather  than  one  which  is  artificial  in  character.*  Strictly 
speaking,  there  are  no  longer  any  pure  monarchical  gov- 
ernments in  Europe.  What  are  loosely  and  popularly 
called  such  are  in  fact  mixed  governments,  that  is,  gov- 
ernments composed  of  monarchical,  aristocratic,  and  de- 
mocratic elements  combined.  The  truth  is,  as  Rousseau 
remarks,  all  governments  are  in  a  sense  mixed .^     There  is 

government  where  the  power  is  in  the  hands  of  the  people  and  is  exercised  (i)  by 
themselves,  (2)  by  their  representatives,  mediately  or  immediately.  "Federalist," 
No.  9. 

'  Compare  Burgess,  "Political  Science  and  Constitutional  Law,"  vol.1,  p.  72. 

^"Contrat  social,"  bk.  Ill,  ch.  7.  Aristotle,  Plato,  Cicero,  and  Polybius  seem 
to  have  recognized  the  mixed  type  of  constitution,  Cicero  and  Polybius  treating 
Rome  as  an  example  of  such  a  form.  Polybius  dwelt  upon  the  excellence  of  this  form, 
and  declared  it  to  be  the  best  of  all  for  men.  (See  Woolsey,  "Political  Science," 
vol.  I,  pp.  470-472.)  Woolsey  (p.  474)  criticises  the  term  "mixed"  on  the  ground 
that  a  government  cannot  be  partly  in  the  hands  of  one,  the  few  and  the  many.  He 
prefers  the  term  "limited"  instead.  Tacitus  spoke  of  a  government  compounded 
out  of  democratic,  monarchical,  and  aristocratical  elements.  Pradier-Fodcre,  in  his 
'Trincipes  generaux  de  Droit  de  Politique,"  etc.  (ch.  9),  discussed  mixed  forms  at 
length  and  pointed  out  that  the  varieties  are  almost  infinite  in  number.  It  would  be 
necessary,  he  said,  to  write  the  history  of  all  peoples  in  order  to  enumerate  all  the 
forms  of  mixed  constitutions  that  have  been  in  force  since  the  beginning  of  the 
world.  Bluntschli,  in  his"AlIgemeine  Staatslehre  "  (bk.  VI,  ch.  2),  devotes  a  chapter 
to  what  he  styles  the  "mixed  state."  But  strictly  speaking,  there  can  be  no  such  thing 
as  a  mixed  state,  the  term  "  mixed  "  being  descriptive  only  of  a  form  of  government. 
Compare  also  Treitschke,  "Politik,"  vol.  II,  p.  13,  who  defined  a  mixed  state  as  one 


Monar- 
chies 


172  FORMS    OF    GOVERNMENT 

no  modern  civilized  state  in  which  the  governing  power  is 
vested  wholly  in  the  hands  of  a  single  person.  In  the  typi- 
cal monarchies,  so  called,  of  Europe,  there  is  an  hereditary 
chief  of  state  and  a  legislative  body,  containing  usually 
both  aristocratic  and  democratic  elements.  Only  in  cer- 
tain absolute  states  of  Asia  and  Africa  do  we  find  anything 
approaching  pure  monarchical  government,  that  is,  one 
in  which  the  ruling  power  is  vested  in  the  hands  of  a  single 
person. 
Elective  On  the  basis  of  the  source  or  tenure  of   the  executive, 

monarchies  may  be  classified  as  hereditary  or  elective,  or 
they  may  be  a  combination  of  both.  All  of  the  monar- 
chies of  the  present  day  are  hereditary,  though  there  have 
been  many  exceptions  in  the  past.  The  early  Roman 
kings  were  elective,  as  were  the  kings  of  the  ancient  mon- 
archy of  Poland.  The  head  of  the  Holy  Roman  Empire, 
as  is  well  known,  was  chosen  by  a  small  college  of  electors, 
though  usually  from  the  same  family.  Under  the  Treaty 
of  Berlin,  of  1878,  the  reigning  prince  of  Bulgaria  owed  his 
throne  to  election.  In  general,  it  may  be  said  that  the 
installation  of  dynasties  in  newly  formed  states  usually 
takes  place  through  election,  though  the  crown  thereafter 
is  generally  transmitted  according  to  certain  rules  of  heredi- 
tary succession.^  It  may  also  be  stated  as  a  general  propo- 
sition that  in  the  early  history  of  states  kings  were  generally 
chosen  or  in  some  way  accepted  in  the  first  instance,  though 

in  which  monarchy,  aristocracy,  or  democracy  are  "moderated  or  limited  by  other 
political  factors,"  as  where  a  monarchy  is  limited  by  an  aristocratic  or  popular 
chamber.  If  applied  to  the  description  of  a  form  of  government,  no  fault  can  be 
found  with  this  statement.  On  the  subject  of  mixed  governments  see  De  Parieu, 
"  Principes  de  la  Science  politique,"  ch.  5,  and  "  The  Federalist,"  No.  9. 

*  Thus  the  present  wearer  of  the  crown  of  Norway  was  elected  by  the  parlia- 
ment only  after  a  plebiscite  which  pronounced  in  his  favor,  but  henceforth  the 
crown  will  be  transmitted  according  to  the  principle  of  hereditary  succession. 
In  1903  after  the  assassination  of  the  king  of  Servia,  his  successor  was  chosen 
by  the  national  parliament.  Roscher  ("Politik,"  p.  23)  maintains  that  an  elective 
monarchy  is  no  true  monarchy,  but  only  a  special  kind  of  republic,  a  view  which 
has  much  to  commend  it. 


MONARCHIES,   ARISTOCRACIES,   AND   DEMOCRACIES      173 

the  hereditary  feature  was  so  strong  that  the  elective  prin- 
ciple was  gradually  pushed  into  the  background.^  Speak- 
ing of  the  election  of  the  early  English  kings,  Stubbs  ob- 
serves that  "the  king  was  in  theory  always  elected  and  the 
fact  of  election  was  stated  in  the  coronation  service  through- 
out the  Middle  Ages  in  accordance  with  the  most  ancient 
precedent."  ^  "  But,"  he  adds,  "it  is  not  less  true  that 
the  succession  was  by  constitutional  practice  restricted 
to  one  family,  and  that  the  rule  of  hereditary  succession 
was  never,  except  in  great  emergencies  and  in  most  trying 
times,  set  aside."  In  a  sense,  of  course,  the  English  mon- 
archy is  still  elective,  since  Parliament  claims  and  exer- 
cises the  right  to  regulate  the  law  of  succession  at  its 
pleasure.^ 

Again,  monarchy  may  be  either  of  the  absolute  type,  in  Absolute 
which  case  the  monarch  is  sovereign,  and  state  and  gov-  Lhnited 
ernment,  legally  and  politically  speaking,  are  identical,  or  Monar- 
it  may  be  constitutional  or  limited  in  form.     In  the  for- 
mer case  the  monarch  is  bound  by  no  will  except  his  own ; 
in  the  latter  case  he  is  bound  by  the  prescriptions  of  a 
constitution  which  he  has  sworn  to  support,  and  hence  the 
royal  office  is  nothing  but  an  organ  of  government.     No 
examples  of  the  former  type  of  monarchy,  as  has  been  said, 
are  found  to-day  outside  of  Asia  and  Africa.     All  of  the 
so-called   monarchies   of    continental    Europe   now   have 
written  constitutions,  framed    either  by  national    assem- 

^  Compare  Woolsey,  "Political  Science,"  vol.  I,  pp.  520-528. 

^"Constitutional  History  of  England,"  vol.  I,  p.  150.  Waitz  ("Deutsche 
Verfassungsgeschichte,"  vol.  I,  p.  298)  points  out  that  most  of  the  early  German 
monarchies  were  elective.  The  right  of  the  reigning  king  to  recommend  his  successor 
was  recognized,  but  the  people  "confirmed,  acknowledged,  and  chose." 

^  William  and  Mary,  for  example,  were  chosen  as  reigning  sovereigns  in  1689  by  a 
convention  Parliament ;  and  two  years  later  a  new  law  of  succession  was  passed,  fixing 
the  crown  on  a  different  branch  of  the  royal  house  from  that  upon  which  it  would 
have  descended  according  to  the  existing  rules  of  succession.  The  history  of  other 
countries  of  Europe  furnishes  examples  of  elective  monarchies.  Thus  Louis  Napo- 
leon became  emperor  of  the  French  in  1852  through  the  forms  of  a  plebiscite;  and 
a  vacancy  in  the  Spanish  throne  was  filled  by  parliamentary  election  in  1873. 


174 


FORMS    OF    GOVERNMENT 


Kinds  of 
Aris- 
tocracy 


blies  representing  the  people,  or  granted  by  ruling  sover- 
eigns and  accepted  by  the  people/  Monarchies  may  of 
course  be  still  further  subdivided,  but  little  or  nothing 
would  be  gained  by  extending  the  classification  beyond 
hereditary  and  elective,  absolute  and  limited  types.' 

Aristocracies,  like  monarchies,  may  likewise  be  of  sev- 
eral varieties.  There  may  be  aristocracies  of  wealth,  and 
these  may  be  based  either  on  ownership  of  land  or  of  all 
property  in  general;  or  they  may  be  hereditary  and  hence 
based  upon  birth  or  family  connection;  or  they  may  be 
official  in  character,  that  is,  composed  mainly  of  those 
who  hold  or  have  held  public  office;  or  they  may  be  mili- 
tary or  a  combination  of  some  or  all  of  the  above  elements.' 

^  States  as  well  as  governments  are  sometimes  classified  as  absolute  and  limited, 
but  obviously  no  such  classification  can  be  defended.  Legally  all  states  in  the  sense 
in  which  the  term  "state"  has  been  defined  in  this  work  are  absolute  and  un- 
limited as  to  their  powers,  and  hence  it  is  superfluous  to  speak  of  an  absolute  state 
and  an  error  to  speak  of  a  limited  state.  Such  terms  are  descriptive  of  governments 
only.  Legally  what  is  sometimes  called  a  limited  or  part-sovereign  state  is  in  fact 
nothing  but  a  dependency  of  some  other  state. 

'  Bluntschli  ("Allgemeine  Staatslehre,"  bk.  VI,  ch.  7)  extends  the  classification  of 
monarchies  much  farther  and  recognizes  the  following  forms:  despotisms,  civilized 
monarchies,  patriarchal  kingships,  feudal  monarchies,  Prankish  monarchies,  abso- 
lute monarchies,  constitutional  monarchies,  limited  monarchies,  military  and  judicial 
principalities,  etc.  See  also  his  essay  entitled  "  Staatsformen,"  in  his  "  Psycho- 
logische  Studien  iiber  Staat  und  Kirche."  Such  a  classification  rests  upon  no 
single  logical  consistent  principle  and  has  no  interest  for  us.  Woolsey  classified 
monarchies  as  city  states,  absolute  monarchies,  theocratic  monarchies,  limited, 
elective,  mixed,  and  constitutional  monarchies.  "Political  Science,"  vol.  I,  pp. 
485  S.  The  classification  given  in  the  text  above  is  that  adopted  by  Jellinek, 
though  he  goes  farther  and  subdivides  the  limited  type  into  parliamentary  and  con- 
stitutional forms  ("Rechtdes  mod.  Staates,"  pp.  670-692).  For  further  discus- 
sion of  monarchical  governments,  see  Duguit,  "Droit  constitutionnel,"  sec.  58; 
Bluntschli,  "Politik,"  pp.  295-304;  Jellinek,  op.  cii.,  pp.  653-692;  Roscher, 
"Politik,"  bks.  I  and  III;  Bruno  Schmidt,  "Allgemeine  Staatslehre,"  vol.  I, 
pp.264  ff-J  Pradier-Fodere,  "Principes  generaux  de  Droit  de  Politique,"  etc., 
pp.  242-244;  Bernatzik,  "Repubiik  und  Monarchic." 

'  Rousseau  classified  aristocracies  as  natural,  hereditary,  and  elective  ("Contrat 
social,"  bk.  Ill,  ch.  5).  Roscher  ("Politik,"  sec.  18)  classified  them  as  noble  or 
landed  {Ritteraristokratie),  priestly,  and  plutocracies  and  oligarchies.  The  ancient 
writers,  among  them  Aristotle,  considered  an  oligarchy  to  be  a  government  by  a 
wealthy  minority  in  their  own  interest ;  that  is,  it  was  a  perversion  of  aristocracy. 


MONARCHIES,   ARISTOCRACIES,    AND   DEMOCRACIES      175 

Democracies  are  of  two  kinds:  pure  or  direct,  and  rep-  Kinds  of 
resentative  or  indirect.^  A  pure  democracy  is  one  in  '^^^'"^- 
which  the  will  of  the  state  is  formulated  and  expressed 
directly  and  immediately  through  the  people  acting  in 
their  primary  capacity.  A  representative  democracy  is 
one  in  which  the  state  will  is  ascertained  and  expressed 
through  the  agency  of  a  small  and  select  number  who  act 
as  the  representatives  of  the  people.  A  pure  democracy 
is  practicable  only  in  small  states  where  the  voting  popu- 
lation may  be  assembled  for  purposes  of  legislation,  and 
where  the  collective  needs  of  the  people  are  few  and 
simple.  In  large  and  complex  societies,  where  the  legisla- 
tive wants  of  the  people  are  numerous,  the  very  necessi- 
ties of  the  situation  make  government  by  the  whole  body 
of  citizens  a  physical  impossibility. 

In  the  city  states  of  antiquity  pure  democracies  were  not  Pure  De- 
impossible,  and  they  were  not  uncommon;  but  in  the  states  ^°"^^^ 
of  the  modern  world  and  under  modern  conditions  they  are 
impossible.  The  only  surviving  examples  to-day  are 
found  in  four  of  the  petty  and  largely  primitive  cantons 
of  Switzerland.  What  is  in  substance  a  representative  de- 
mocracy is  sometimes  called  a  republic  or  a  republican 
government. 

Although  restricted  by  modern  usage  to  a  government  Republics 
conducted  through  agents  popularly  chosen,  yet  the  term 
"republic,"   as   Hamilton   and   Madison   pointed    out    in 
"The  Federalist,"   has  often   been  employed  to   describe 
governments  which  popular  usage  to-day  w^ould  designate 

Professor  Seeley  remarks  that  an  oligarchy  is  a  deranged  and  diseased  aristocracy 
("Introduction  to  Political  Science,"  lect.  VI).  The  ancients  distinguished  carefully 
between  aristocracy  and  oligarchy,  always  regarding  the  latter  as  a  perverted  form  of 
aristocracy.  Popular  usage  to-day,  however,  disregards  the  distinction,  both  having 
a  bad  signification.  Some  writers  distinguish  between  aristocracy  and  oligarchy  as 
follows:  an  aristocracy  is  a  government  by  a  class,  while  an  oligarchy  is  a  govern- 
ment by  a  small  number  of  persons  who  do  not  necessarily  constitute  a  class  or 
system.     Cf.  Pradier-Fodere,  "Principes  generaux,"  etc.,  p.  241. 

*  On  the  nature  and  kinds  of  democracy  see  Roscher,  "Politik,"  pp.  308-454. 


176  FORMS   OF   GOVERNMENT 

as  monarchical  or  aristocratic*  Thus  Sparta,  Athens, 
Rome,  Carthage,  the  United  Netherlands,  Venice,  and 
Poland  have  all  been  described  by  political  writers  as 
republics,  though  none  of  them  possessed  that  full  repre- 
sentative character  which  we  to-day  consider  to  be  the 
distinguishing  mark  of  a  republic.  Rome,  for  example, 
was  organized  on  a  military  basis,  Venice  was  an  oli- 
garchy of  hereditary  nobles,  Poland  was  a  mixture  of  aris- 
tocracy and  monarchy.  France  under  the  constitution  of 
the  year  XII  (Tit.  I,  sec.  I)  was  styled  a  republic,  though 
the  chief  of  state  bore  the  title  and  rank  of  emperor,  and 
the  crown  was  hereditary  in  the  Napoleonic  family. 
What  is  The  constitution  of    the   United  States  imposes    upon 

lic^  Gov-  the  national  government  the  duty  of  guaranteeing  to  the 
ernment?  component  statcs  a  republican  form  of  government,  but 
it  does  not  attempt  to  define  the  essential  characteristics 
of  such  a  government,  simply  assuming  that  they  are 
too  well  understood  to  admit  of  a  difference  of  opinion. 
Madison  in  "The  Federalist"  said  it  was  a  government 
in  which  there  was  "a  scheme  of  representation."  ^  It 
was,  he  said,  "a  government  which  derives  all  its  powers, 
directly  or  indirectly,  from  the  great  body  of  the  people 
and  is  administered  by  persons  holding  their  ofHces  during 


^  "The  Federalist,"  No.  39.  Sir  Henry  Maine  remarks  that  the  term  "republic  " 
was  once  used  to  signify  in  a  vague  way  a  government  of  any  sort  which  had  no  hered- 
itary king,  but  which  has  come  to  have  the  added  meaning  of  a  government  resting 
on  a  widely  extended  suffrage.  "Popular  Government,"  p.  198.  Bluntschli observes 
in  his  "Politik"  (pp.  295  ff.)  that  a  republic  may  be  understood  in  a  wide  and 
a  narrow  sense.  In  the  wider  sense  we  designate  as  republics  all  states  in  which  the 
idea  of  the  common  good  {res  publico)  prevails,  that  is,  all  states  with  public  law  {jiis 
■publicum).  In  this  sense  the  natural  law  writers  of  the  seventeenth  and  eighteenth 
centuries  spoke  of  all  free  states  as  republics.  In  this  sense,  also,  says  Bluntschli, 
a  government  is  republican  where  no  one  holds  public  power  as  a  property  right, 
where  all  power  is  exercised  for  the  common  good,  where  the  inhabitants  are  sub- 
jects and  free  citizens  at  the  same  time,  etc.  In  a  narrower  sense  a  republic  is  used 
in  opposition  to  a  monarchy.  In  this  sense  it  has  reference  to  a  government  exercised 
through  a  collection  of  persons,  and  is  either  an  aristocracy  or  a  democracy. 

2  "  The  Federalist,"  No.  10. 


MONARCHIES,   ARISTOCRACIES,   AND   DEMOCRACIES     177 

pleasure,  for  a  limited  period  or  during  good  behavior."  * 
The  two  "great  points  of  difference,"  said  Madison,  "be- 
tween a  republic  and  a  democracy  are:  first,  the  govern- 
ing power  in  a  republic  is  delegated  to  a  small  number  of 
citizens  elected  by  the  rest;  and,  second,  a  republic  is 
capable  of  embracing  a  larger  population  and  of  extend- 
ing over  a  wider  area  of  territory  than  is  a  democracy. 
In  a  democracy  the  people  meet  and  exercise  the  govern- 
ment in  person;  in  a  republic  they  assemble  and  administer 
it  by  their  representative  agents."  ^  Madison  rightly  re- 
garded hereditary  tenures  as  inconsistent  with  modern 
notions  of  republican  government,  although  he  considered 
good  behavior  tenure  for  the  judiciary  at  least  admissible. 
It  is  also  essential  to  the  republican  idea  that  the  prin-. 
ciple  of  representation  shall  be  based  upon  a  reasonably 
wide  suffrage.  A  suffrage  so  restricted,  for  example,  as 
that  which  existed  in  France  under  the  restored  monarchy 
(1814-1830),  when  the  number  of  voters  did  not  exceed 
300,000  out  of  a  total  population  of  10,000,000,  would 
hardly  be  considered  consistent  with  republican  govern- 
ment. 

Republics  have  been  classified  as  aristocratic  and  demo- 
cratic; '  as  monocratic  and  plutocratic;  *  unlimited,  mixed, 
and  limited ;  ^  as  corporate,  oligarchic,  aristocratic,  and  dem- 

'  Ibid.,  No.  39.  A  republic,  says  Jellinek,  is  the  negation  of  monarchy.  It 
is  government,  not  by  a  single  physical  person,  but  by  a  collegia!  organization 
more  or  less  numerous.  The  German  Empire  he  describes  as  a  republic  rather 
than  a  monarchy  because  the  highest  Staatsgewalt  is  not  in  the  hands  of  a  single 
person  ("Rechtdes  mod.  Staates,"  p.  695).  Duguit,  as  wehaveseen,  made  the  tenure 
of  the  chief  of  state  the  test  of  distinction  between  a  monarchy  and  a  republic;  in  the 
former  the  tenure  is  hereditary,  in  the  latter  elective  ("Droit  constitutionnel," 
p.  37S).  Bernatzik,  as  we  have  said,  makes  th;  distinction  turn  on  the  question 
of  whether  the  head  of  the  state  has  a  subjective  right  to  his  office. 

*  "The  Federalist,"  No.  14.  It  is  clear  that  Madison  here  had  in  mind  a  pure 
rather  than  a  representative  democracy. 

^  Lewis,  "Use  and  Abuseof  Political  Terms,"  p.  69;  Montesquieu,  bk.  II,  chs.  i 
and  2;  also  bk.  Ill,  ch.  3. 

*  Gareis,  "Allgemeine  Staatslehre,"  in  Marquardsen's  "Handbuch, "  vol.  I,  p.  39. 
'  Martens,  "Precis  du  Droit  des  Gens,"  vol.  I,  sec.  27. 

POT,.  SCI.  — 12 


178 


FORMS   OF    GOVERNMENT 


ocratic;  *   as  federal  and  confederate;   as  centralized   and 
unitary;  as  hereditary  and  elective,^  etc. 

The  classification  of  governments  as  monarchies,  aris- 
tocracies, and  democracies  has  lost  its  former  importance 
and  now  possesses  little  interest  for  the  political  scientist. 
To  speak  of  a  government  as  monarchical  or  aristocratic 
conveys  little  or  no  idea  of  its  structural  organization  or 
processes  of  action.  Many  so-called  monarchies  are  such 
only  in  name,  and  there  is  no  fundamental  difference  in 
principle  between  aristocracies  and  democracies,  the  only 
distinction  being  one  of  degree.  Such  a  classification  puts 
governments  as  widely  difi"erent  as  those  of  Great  Britain, 
Prussia,  Russia,  and  Turkey  in  the  same  class,  others  as 
different  as  those  of  France  and  the  United  States  in  an- 
other and  the  same  class.  It  is  necessary,  therefore,  to 
find  other  principles  of  classification  in  order  to  be  able 
to  classify  governmental  forms  in  any  satisfactory  or  con- 
sistent manner. 


other 

Classifica- 
tions 


II.     OTHER    CLASSIFICATIONS;      CABINET    AND     PRESIDENTIAL 

GOVERNMENT 

Montesquieu  classified  governments  as  republics,  monar- 
chies, and  despotisms.  He  defined  a  republican  govern- 
ment as  one  in  which  the  whole  body  or  a  part  of  the  people 
exercises  supreme  power;  a  monarchy  as  one  in  which  a 
single  person  governs  by  fixed  and  established  laws;  a 
despotism  as  one  in  which  a  singie  person  directs  every- 
thing by  his  own  will  and  caprice.'^  The  principle  under- 
lying this  classification  is  partly  numbers  and  partly  the 
spirit  and  character  of  the  government.  Woolsey  clas- 
sified governments  as  monarchies,  aristocracies,  democra- 
cies,  and    "compound  states."  *     Other  writers  recognize 

•  Jellinek,  "Recht  des  mod.  Staates,"  p.  696. 
'  Martens,  op.  cit.,  sec.  26. 

•  "Esprit  des  Lois,"  bk.  II,  chs.  i  and  2;  also  bk.  Ill,  ch.  3. 

•  "Political  Science,"  vol.  I,  pp.  485  ff. 


OTHER  CLASSIFICATIONS  179 

only  two  forms,  namely,  monarchies  and  republics,  the  lat- 
ter comprehending  both  aristocracies  and  democracies.^ 

The  fault  with  most  classifications  of  governments  is,  as 
was  said  of  the  classifications  of  states,  that  they  do  not 
rest  upon  any  consistent  scientific  principle  which  will 
serve  as  a  basis  for  the  differentiation  of  governments  with 
respect  to  their  fundamental  characteristics.  No  single 
classification  can  be  of  much  value;  there  must  be  as  many 
classifications  as  there  are  points  of  view  from  which  the 
government  may  be  considered. 

A  well-known  authority  on  political  science  adopts  the  Suggested 
following  canons  of  distinction  in  classifying  governmental  orciass^ 
forms:    first,  the  identity  or  non-identity  of  the  state  with  fication 
its  government;  second,  the  nature  of  the  official  tenure, 
including  the  method  of  constituting  the  ofBcial  relation; 
third,  the  relation  of  the  legislature  to  the  executive;   and 
fourth,  the  concentration  or  distribution  of  governmental 
power.^ 

Upon  the  basis  of  the  identity  or  non-identity  of  the  Primary 
state  with  the  government,  they  may  be  classified  as  pri-  ggntatlv" 
mary  or  representative.     The  pure  democracy,  where  the  ^overn- 
citizens  assemble  in  mass  meeting  and  enact  the  laws  of 
the  state  and  frame  administrative  regulations,  is,  of  course, 
the   nearest   approach    to   what  we    have  called    primary 
government.     Where,  on  the  other  hand,  the  sovereign  has 
delegated  to  an  organ  or  organs  the   power   to   act  for  it 
in  matters  of  government,  as  is  now  the    almost   univer- 
sal practice,  we  have  representative  government  in  some 
form,  though  not  necessarily  popular  government.' 

*  For  example,  Georg  Meyer,  Schulze,  and  Zacharia.  Alexander  Hamilton  classi- 
fied governments  as  democratic,  aristocratic,  monarchical,  and  mixed.  "The  Fed- 
eralist," No.  9. 

*  Burgess,  "Political  Science  and  Constitutional  Law,"  vol.  II,  bk.  Ill,  ch.  i. 
'"We  mean  by  representative  government,"  said  Lord    Brougham  ("British 

Constitution,"  Works,  vol.  XI,  p.  89),  "one  in  which  the  body  of  the  people,  either  in 
whole  or  in  a  considerable  proportion  of  the  whole,  elect  their  deputies  to  a  chamber 
of  their  own."     "A  government  is   representative,"  said  George  Cornwall  Lewis» 


ments 


l8o  FORMS   OF    GOVERNMENT 

Hereditary  Considered  from  the  standpoint  of  the  nature  and  source 
Elective  ^^  ^^^  official  tenure,  governments  may  be  classified  as 
Govern-  hereditary  and  elective.  Hereditary  government  is  that 
form  in  which  the  source  of  office  is  inheritance  accord- 
ing to  some  rule  or  principle  governing  the  transmission 
of  political  honors  and  titles.  Elective  government  is  that 
form  in  which  the  choice  of  those  who  exercise  public  power 
devolves  upon  the  citizens  or  rather  that  portion  of  them 
who  constitute  the  electoral  body.  The  method  of  elec- 
tion may  be  direct,  or,  as  is  sometimes  said,  election  in 
the  first  degree;  or  it  may  be  indirect,  or  in  the  second 
degree.  In  either  case  it  may  be  by  an  electorate  consti- 
tuted on  the  basis  of  a  restricted  suffrage  or  by  one  on  the 
basis  of  what  is  popularly  designated  as  universal  suffrage. 
With  respect  to  the  relation  of  the  executive  to  the  leg- 
islature, governments  may  be  classified  as  cabinet  (the 
terms  "ministerial,"  "parliamentary,"  and  "responsible" 
are  sometimes  preferred) ;  and  what,  for  lack  of  a  more 
suitable  term,  has  been  called  presidential  or  congressional 
government. 
Cabinet  Cabinet  government  is  that  system  in  which   the  real 

ment™"  executive  —  the  cabinet  or  ministry  —  is  immediately  and 
legally  responsible  to  the  legislature  or  one  branch  of  it 
(usually  the  more  popular  chamber)  for  its  legislative  and 
administrative  acts,  and  mediately  or  politically  respon- 
sible to  the  electorate;  while  the  titular  or  nominal 
executive  —  the  chief  of  state  —  occupies  a  position  of 
irresponsibility.^       The    members    of    the    ministry     are 

"when  a  certain  portion  of  the  community,  generally  consisting  either  of  all  the 
males — or  of  a  part  of  them,  determined  according  to  some  qualification  of  property, 
residence,  or  other  accident  —  have  the  right  of  voting  at  certain  intervals  of  time  for 
the  election  of  particular  members  of  the  sovereign  legislative  body."  "Use  and 
Abuse  of  Political  Terms,"  p.  107. 

•  Recently  the  idea  has  begun  to  take  root  in  England  that  the  cabinet  is  im- 
mediately responsible  to  the  electorate  and  only  secondarily  responsible  to  the  House 
of  Commons.  Only  on  this  principle  can  vi^e  explain  the  resignation  of  the  Balfour 
Cabinet  in  1905,  at  a  time  when  it  still  retained  a  large  majority  in  the  House  of 


OTHER  CLASSIFICATIONS  i8i 

usually  members  of  the  legislature  and  the  leaders 
of  the  party  in  the  majority,  but  whether  they  are  mem- 
bers or  not,  they  have  the  privilege  of  occupying  seats 
therein  and  of  participating  in  the  deliberations/  In 
short,  the  ministerial  office  is  not  incompatible  with  leg- 
islative mandate.  On  the  contrary,  the  cabinet  system 
presupposes  the  double  character  of  minister  and  member, 
and  thus  executive  and  legislative  functions  are  inextri- 
cably commingled.  "  There  is,"  observes  Courtenay  Ilbert, 
"  no  such  separation  between  the  executive  and  legislative 
powers  as  that  which  forms  the  distinguishing  mark  of  the 
American  Constitution  "  but  the  relation  is  one  of  inti- 
macy and  interdependence.^  The  nominal  or  titular  ex- 
ecutive, according  to  a  legal  fiction,  is  incapable  of  doing 
wrong,  in  a  political  sense,  and  is,  as  it  were,  under  the 
guardianship  of  his  ministers,  who  assume  the  responsi- 
bility for  his  official  acts.  Collectively  they  constitute  the 
"government";  they  prepare,  initiate,  and  urge  the  adop- 
tion by  the   legislature  of  all   the  more  important   legisla- 

Commons.  I  am  indebted  to  Professor  W.  J.  Shepard  for  calling  my  attention  to 
this  tendency. 

*  The  English  make  a  distinction  between  the  ministry  and  the  cabinet.  The 
ministers  —  some  forty  or  more  in  number  —  are  the  chiefs  of  the  executive  depart- 
ments, among  which  the  administration  of  the  country  is  divided,  including  also  the 
parliamentary  undersecretaries  who  are  not  heads  of  departments.  The  cabinet, 
on  the  contrary,  is  simply  "  those  members  of  the  King's  ministry  who  are  sum- 
moned (by  the  Prime  Minister)  to  attend  cabinet  meetings  "  (Ilbert  in  Redlich's, 
"Parliamentary  Procedure,"  vol.  I,  p.  13).  There  are  usually  some  eighteen  or 
twenty  of  these.  In  a  large  sense  the  ministry  embraces  all  the  political  functionaries 
charged  with  the  direction  of  public  affairs  who  hold  their  positions  only  during  the 
existence  of  the  cabinet.  From  all  these  a  committee  called  the  cabinet  is  chosen. 
Generally  there  are  a  few  ministers  in  charge  of  departments  that  have  no  real  exist- 
ence. They  are  usually  experienced  statesmen  who  have  been  introduced  into  the 
ministry  for  the  sake  of  their  advice.  For  different  grades  of  ministers  and  under- 
secretaries, see  Dupriez,  "Les  Ministres  dans  les  Pays  principaux  d' Europe  et 
d'Amerique,"  vol.  I,  p.  36;  Todd,  "Parliamentary  Government  in  Great  Britain," 
vol.  I,  p.  179;  and  Duguit,  "Droit  constitutionnel,"  pp.  1037-1038.  On  the  office 
of  undersecretary  of  state,  see  Clavi^res,  "Les sous-secretaires  d'fitat"  (Paris,  1901), 
and  Sivian,  ibid.  (Paris,  1902). 

*  Redlirh,  "  Parliamentary  Procedure,"  I,  XII. 


i82  FORMS    OF    GOVFRNMENT 

tive  projects;  and  from  their  seats  in  the  legislature  they 
defend  their  poHcies  from  attack,  and  when  called  upon 
must  give  an  account  of  their  official  conduct.  They  are 
the  heads  of  the  great  administrative  departments  as  well 
as  the  political  chiefs  and  parliamentary  leaders  of  the 
country,  and  are  charged  with  administering  the  laws 
which  they  propose  and  have  enacted.  So  long  as  their 
policies  and  official  conduct  command  the  support  of  the 
majority  of  the  members  of  the  legislature,  or  rather  of  that 
chamber  to  which  they  are  responsible,  they  continue  to 
hold  the  reins  of  office  and  govern  the  country.  But  as 
soon  as  the  legislature  manifests  in  no  uncertain  language 
its  want  of  confidence  in  the  ministry,  through  a  vote  of 
censure  or  by  a  refusal  to  pass  its  measures,  the  ministry 
either  resigns  office  in  a  body  or  it  dissolves  the  chamber  to 
which  it  owes  responsibility,  orders  a  new  parliamentary 
election,  and  appeals  to  the  electorate  to  sustain  it  by  re- 
turning a  new  parliament  which  is  in  sympathy  with  its 
policies  and  acts.  If  the  results  of  the  election  are 
favorable  to  the  ministry,  it  continues  in  office;  if  adverse, 
it  resigns  as  soon  as  the  results  are  fully  known  or  when 
the  new  parliament  has  assembled  and  by  positive  vote 
has  made  known  its  want  of  sympathy.  In  a  typical 
cabinet  system  like  that  of  Great  Britain  the  min- 
istry is  taken  wholly  from  the  ranks  of  the  party  having  a 
majority  in  the  popular  chamber,  and  thus  possesses  the 
character  of  homogeneity.  In  legal  theory  the  ministers 
are  chosen  by  the  nominal  or  titular  executive,  though 
where  the  system  of  responsibility  to  the  legislature  is 
fully  developed  they  are  in  reality  chosen  by  the  legislature, 
and  the  designation  by  the  chief  of  state  is  little  more  than 
a  ceremonial  function  of  investing  them  with  the  symbols 
of  office.^     The  number  of  ministers  is  rarely  fixed  either 

*  It  is  not  to  be  inferred  from  what  is  said  above  in  regard  to  the  position  of  the 
crown  under  the  cabinet  system  of  government  that  it  necessarily  plays  an  insig- 
nificant part.     A  respected  sovereign  largely  controls  his  ministers  by  his  influence. 


OTHER   CLASSIFICATIONS  183 

by  law  or  by  custom,  and  hence  the  size  of  the  ministry  is 
uncertain  and  variable,  the  exact  number  in  any  case 
being  usually  determined  by  the  premier  or  by  executive 
decree.  In  Great  Britain  the  number  {i.e.  of  the  cabinet) 
in  recent  years  has  been  in  the  neighborhood  of  twenty;  in 
France,  it  is  now  twelve;  in  Italy,  eleven;  in  Belgium,  ten. 

The   cabinet   system    originated    in    England    and    was  Spread  of 
the  product  of  history  rather  than  of  invention.     From  GovSn- 
England  it  spread  little  by  little  to  Holland,  France,  Bel-  ment 
gium,    Roumania,   Sweden,    Norway,    Denmark,   and   the 
British  Colonies,  until  it  has  become,  says  Esmein,  "the 
principal  system  of  government  in  the  world."  ^     It  has 
made  little  headway  in  Germany,  however,  and  none  at 
all   in  Switzerland  or  North   America,   and   but  little  in 
Latin    America.     The    cabinet    system    has    received    its 
fullest  development  in  Great  Britain,  and  there  its  work- 
ings have  been  attended  with  the  most  satisfactory  results. 

Among    the    cabinet    systems    of    the    continent,    that  Cabinet 
of   Belgium   most   nearly   resembles    the    British   system,  menTln 
though  the  crown  plays  a  more  important  role  in   that  Beigiua 
country  than  in  England.     The  responsibility  of  ministers 
to  the  king  is  more  real  than  in  England,  and  he  may  direct 
and   dismiss   them  with  more   freedom  than   the   British 
sovereign  may.^     As  there  are  generally  recognized  par- 

If  their  decisions  seem  impolitic  or  dangerous,  he  is  often  able  to  persuade  them  to 
change  their  policy.  His  power  to  dismiss  them  and  appeal  to  the  people  gives 
him  a  strong  defense  against  their  misconduct  as  well  as  that  of  the  legislature. 
Such  a  power  is  essential  to  successful  parliamentary  government.  Without  it  a 
legislature  with  which  the  people  are  no  longer  in  sympathy  might  not  only  anni- 
hilate the  executive,  but  impose  upon  them  a  government  repugnant  to  their  sense  of 
right  and  justice.  On  the  influence  of  the  crown  under  the  cabinet  system  in 
England,  see  Bagehot,  "The  English  Constitution,"  chs.  2  and  3;  and  Todd, 
"Parliamentary  Government,"  ch.  4. 

^  "Droit  constitutionnel,"  p.  in.  For  discussions  of  the  merits  and  demerits  of 
cabinet  government,  see  Esmein,  op.  ciL,  ch.  5,  especially  pp.  168-178;  Sidgwick, 
"Elements  of  Politics,"  p.  443  ff.;  Duguit,  "Droit  constitutionnel,"  sec.  61; 
Laveleye,  "Le  Gouvemement  dans  la  Democratic,"  vol.  II,  bk.  10,  chs.  1-2. 

^  Dupriez,  "Les  Ministres  dans  les  Pays  principaux,"  vol.  I,  p.  215. 


lS4  FORMS   OF    GOVERNMENT 

liamentary  leaders,  the  king  rarely  has  any  real  choice, 
however,  in  the  selection  of  his  ministers/  In  Belgium,  as 
in  England,  ministers  without  portfolios  are  sometimes 
appointed  as  a  means  of  introducing  into  the  government 
eminent  persons  whose  support  and  experience  the  gov- 
ernment desires  to  avail  itself  of,  yet  who  would  hesitate 
to  assume  the  burden  of  a  cabinet  portfolio.  As  in  Eng- 
land, ministers  are  chosen  not  from  the  ranks  of  technical 
administrators,  except  in  the  case  of  the  minister  of  war, 
who  is  always  a  soldier  and  usually  an  active  general, 
but  from  the  members  of  parliament  and  from  the 
chamber  of  deputies  rather  than  from  the  senators.  All 
ministers,  whether  members  or  not,  have  full  entree  into 
either  chamber. 
Cabinet  Cabinet  government  was  introduced  in  France  by  the 

m°eiiThi  charter  of  1814;  it  became  fully  established  under  the 
France  July  monarchy,  was  practically  abandoned  in  1848,  but 
was  reestablished  with  the  third  republic,  though  it  has 
never  attained  the  success  there  that  it  has  in  England. 
In  France  there  is  no  incompatibility  whatever  between 
ministerial  office  and  legislative  mandate,  and  neither  law 
nor  custom  requires  a  member  of  parliament  appointed 
to  the  cabinet  to  resign  his  seat  and  seek  a  reelection, 
as  is  the  rule  in  England.  Custom  now  requires  that  all 
cabinet  portfolios  shall  be  given  to  members  of  parlia- 
ment, though  until  recently  this  rule  did  not  apply  to 
the  ministers  of  war  and  marine.^  The  English  and 
Belgian  practice  of  appointing  ministers  without  port- 
folios has  not  been  followed  in  France  since  1868,  though 
undersecretaries  are  sometimes  appointed,  there  being  four 

■  Dupriez,  "Les  Ministres  dans  les  Pays  principaux,"  vol.  I,  p.  212. 

'Dupriez,  vol.  II,  p.  336.  The  present  premier,  however,  in  appointing  Gen- 
eral Brun  to  the  ministry  of  war  and  Admiral  de  la  Payrere  to  the  ministry  of 
marine,  has  returned  to  the  earlier  practice  of  selecting  professional  military  and 
naval  commanders  respectively  for  these  offices  rather  than  civilians  who  are  mem- 
bers of  the  legislature.  For  a  good  brief  review  of  the  French  system,  see  Duguit, 
"  Droit  constitutionnel,"  sec.  61;  also  sec.  144. 


OTHER  CLASSIFICATIONS  185 

such  at  the  present  time.  Ministers  are  usually  regarded 
as  being  responsible  to  the  chamber  of  deputies  only, 
though  the  constitutional  law  of  February  25,  1875,  ex- 
pressly declares  that  they  shall  be  solidly  responsible  to 
the  chambers  for  the  general  policy  of  the  government  and 
individually  responsible  for  their  personal  acts.^  In  legal 
theory  they  are  appointed  by  the  president  of  the  repub- 
lic, but  in  fact  circumstances  usually  determine  who  shall 
be  members,  so  that  the  president  has  little  freedom  of 
choice.  Owing  to  the  existence  of  many  groups  in  France 
the  task  of  constructing  a  cabinet  is  often  one  of  great 
difficulty.  Hardly  any  single  group  or  coalition  of  groups 
ever  possesses  a  majority  in  the  popular  chamber,  and 
it  not  infrequently  happens  that  there  is  no  recognized 
leader  to  whom  the  chief  of  state  may  turn  and  intrust 
the  task  of  constituting  the  cabinet.^  Under  such  cir- 
cumstances the  premier  is  sought  from  the  old  cabinet 
which  has  been  condemned.^  Consequently  it  nearly 
always  happens  that  a  new  cabinet  in  France  contains 
several  members  of  the  old  one,  a  condition  that  almost 
never  happens  in  England,  especially  when  there  has  been 
a  change  of  parties.  The  principal  difficulty  encountered 
in  constructing  a  stable  cabinet  in  France  arises  from  the 
necessity  of  giving  the  different  groups  a  sufficient  num- 
ber  of  members   so   as   to  satisfy  them.^     This  requires 

'  The  view  that  the  ministry  is  responsible  to  the  senate  as  well  as  to  the  cham- 
ber of  deputies  is  ably  maintained  by  Duguit  ("  Droit  const.,"  p.  1070),  but  is 
denied  by  Esmein  ("  Droit  const.,"  4th  ed.,  p.  688).  As  a  matter  of  fact  French 
ministries  have  on  several  occasions  been  forced  to  resign  by  the  hostile  attitude  of 
the  senate.  For  a  discussion  of  the  particular  instances,  see  Duguit,  p.  1073 ; 
Lowell,  "  Government  of  England,"  vol.  I,  pp.  22  fif. ;  and  Perrin,  "  De  la  Re- 
sponsabilite  penale  du  Chef  de  I'fitat,"  etc.,  p.  45. 

^Compare  Esmein,  "Droit  constitutionnel,"  pp.  168-178;  Dupriez,  vol.  II,  pp. 

337  ff- 

'  Dupriez  remarks  that  of  the  eighteen  ministries  which  ruled  France  from  the 
establishment  of  the  Third  Republic  down  to  1893,  seven  were  presided  over  by  pre- 
miers who  were  members  of  preceding  cabinets.     Op.  cit.,  p.  337. 

*  See  Dupriez,  vol.  I,  pp.  340-344. 


1 86 


FORMS   OF    GOVERNMENT 


Cabinet 
Govern- 
ment in 
Italy 


skill  and  tact,  and  even  when  the  task  is  well  done  such  a 
ministry  is  weak  and  unstable  because  it  is  heterogeneous 
instead  of  homogeneous.  Where  there  are  more  than 
two  political  parties  in  a  state  having  the  cabinet  sys- 
tem of  government,  coalition  cabinets,  with  their  tradi- 
tional weakness  and  instability,  are  inevitable.  They  are 
weak  and  unstable  because  it  is  next  to  impossible  for  a 
ministry  representing  such  widely  different  interests  to 
pursue  a  common  policy  for  any  great  length  of  time. 
The  result  is  that  ministries  are  short-lived  in  France 
and  cabinet  government  has  not  produced  satisfactory 
results.* 

In  Italy  the  conditions  under  which  cabinet  govern- 
ment is  conducted  are  similar  in  many  respects  to  those 
prevailing  in  France.  As  in  France,  the  chambers  are 
always  divided  into  a  number  of  political  groups  or  fac- 
tions, unstable,  but  sharply  differentiated  and  well-dis- 
ciplined. Under  such  circumstances  it  is  difficult  for  one 
man  to  rally  the  support  of  a  majority  to  any  measure 
concerning  which  there  is  any  considerable  opposition. 
Enormous  difficulties,  even  more  so  than  in  France,  are 
consequently  encountered  in  forming  a  cabinet.  Hardly 
any  leaders  are  designated  by  circumstances  as  the  repre- 
sentatives of  public  opinion,  and  hence  there  is  no  certainty 
that  the  ministerial  leaders  chosen  will  be  able  to  com- 
mand the  support  of  the  chamber  on  any  measure.  As 
in  France,  widely  different  groups  must  be  given  repre- 
sentation in  the  cabinet,  and  each  must  be  placated  when- 
ever it  shows  signs  of  disaffection.  Cabinets  form.ed 
after  long  and  laborious  negotiations,  says  Dupriez,  some- 
times go  to  pieces  over  the  first  question  which  provokes 


'  For  a  contrary  view,  however,  see  an  article  by  J.  T.  Shotwell,  entitled  "The 
Political  Capacity  of  the  French,"  in  the  "Political  Science  Quarterly,"  vol.  XXIV, 
no.  I.  Since  1879  there  have  been  no  less  than  thirty-six  ministries  in  France,  and 
during  the  last  two  decades  there  have  been  on  an  average  about  two  premiers 
everj-  year. 


OTHER   CLASSIFICATIONS  187 

debate.*  The  Italian  parliamentary  system  differs  in  some 
particulars  from  both  those  of  England  and  of  France. 
In  the  first  place,  the  action  of  the  chamber  in  determin- 
ing the  selection  of  the  ministers  is  less  than  it  is  in  either 
England  or  France.  In  Italy  the  king  enjoys  a  much  larger 
freedom  and  discretion  in  choosing  his  ministers,  a  fact 
which  sometimes  leads  to  the  "disorganization  and  confu- 
sion of  the  parliamentary  assembly."  In  theory  the  cabi- 
net is  responsible  to  the  king  and  the  parliament  combined, 
but  the  parliament,  we  are  told,  has  "obsequiously  sur- 
rendered its  powers  of  control,  so  that  the  responsibility 
is  now  due  mainly  to  the  king."^  The  ministers  are 
generally  taken  from  the  chamber  of  deputies,  the 
premier  practically  always.^  The  ministers  of  war  and 
marine  are  usually  army  and  navy  officers  respectively, 
and  if  not  already  senators,  they  are  made  such  by 
royal  appointment  at  the  time  they  are  chosen  to  the 
cabinet.  Ministers  without  portfolios  are  sometimes  ap- 
pointed, and  since  1888  each  minister  has  had  under  his 
control  an  undersecretary,  who  takes  no  part  in  the  delib- 
erations of  the  cabinet,  but  may  represent  the  minister 
before  the  chamber  and  defend  the  acts  of  the  govern- 
ment.* 

In  Germany  there  exists  what  may  be  called  ministerial,  The 
but  not  parliamentary,  responsible  government.     Both  in  g*™^" 
the  imperial  and  state  governments  ministers  are  appointed 
by  the  executive  without  reference  to  the  political  complex- 
ion of  the  legislature  or  without  regard  to  the  wishes  of  the 

^  "Les  Ministres,"  etc.,  vol.  I,  p.  287. 

^  This  is  the  view  of  Dupriez  (vol.  I,  p.  287)  —  a  view  which  seems  a  little 
extreme.  The  king,  it  is  quite  true,  exercises  a  more  important  role  in  the  selec- 
tion of  ministers  than  in  England,  but  there  are  limitations  on  his  choice,  and 
strong  party  leaders,  like  Giolitti  and  Sonino,  have  been  practically  forced  upon 
him.  In  actual  practice,  moreover,  the  responsibility  of  the  ministers  is  primarily 
to  the  legislature  rather  than  to  the  king. 

'  Only  once  since  1848  has  the  premier  been  a  senator. 

*  Dupriez,  vol.  I,  p.  282. 


1 88  FORMS   OF   GOVERNMENT 

majority.  In  short,  the  executive  is  free  to  choose  whom 
he  will.  Technical  administrative  experts  who  have  had 
long  experience  in  the  service  and  have  risen  by  degrees 
to  be  heads  of  departments,  rather  than  parliamentary 
leaders  or  political  chiefs,  are  usually  preferred.  They 
are  not  generally  required  by  the  constitution  to  be  taken 
from  either  chamber,  though,  whether  members  or  not, 
they  are  given  entree  thereto  with  the  right  of  debate. 
They  are  not  chosen  exclusively  from  one  or  the  other 
party,  though  certain  groups  are  usually  recognized  in  the 
construction  of  a  cabinet,  for  homogeneity  is  not  consid- 
ered a  necessity.*  Legally  and  theoretically  they  owe  no 
responsibility  to  parliament,  but  are  responsible  for  their 
acts  only  to  the  king  or  the  prince  who  appointed  them.^ 
Their  tenure,  legally  speaking,  is  dependent  upon  the  royal 
favor  and  not  upon  the  will  of  either  chamber.  The 
policies  of  state  are  determined  by  the  king  and  carried  out 
by  the  ministers,  who  are  theoretically  at  least  the  servants 
of  the  royal  will.'  Generally,  in  cabinet  governments, 
the  role  of  the  cabinet  is  not  determined  by  positive 
law,  but  by  usage  and  custom.  In  Prussia,  however,  this 
is  not  the  practice.  There  the  relations  between  king  and 
ministers,  between  the  ministers  themselves,  their  con- 
trol over  the  administration,  etc.,  are  all  fixed  by  royal 
ordinances.     There  is  no  such  ofificer  as  prime  minister 

*  Dupriez,  vol.  I,  p.  363.  See  also  Passow,  "  Die  Ministerverantwortlichkeit 
in  den  deutschen  Einzelstaaten." 

*  Nevertheless  recent  events  in  Germany  show  a  tendency  in  the  direction  of 
responsibility  to  the  legislature.  Chancellor  von  Billow's  virtual  admission  on  the 
occasion  of  the  publication  of  the  Emperor's  interview  with  an  Englishman  in  1908, 
that  the  defeat  of  the  government  by  the  Reichstag  would  make  his  resignation  a 
practical  necessity,  was  accepted  by  the  liberal  leade'-s  as  an  important  step  in  the 
direction  of  the  establishment  of  ministerial  responsibility  to  the  popular  chamber, 
and  when  the  chancellor  subsequently  resigned  on  the  defeat  of  his  budgetarj' 
proposals,  the  principle  was  given  additional  sanction. 

'  The  Prussian  theory  and  practice  in  this  point  is  well  stated  by  Bismarck  in  a 
speech  delivered  in  the  Reichstag  on  Jan.  24,  1882,  and  quoted  in  part  in  Dupriez, 
vo'.  I,  p.  363. 


OTHER   CLASSIFICATIONS  189 

who  exercises  the  power  of  direction  over  his  subordinates, 
though  there  is  a  minister-president  who  acts  as  a  mod- 
erator during  the  absence  of  the  king,  and  who  frequently 
presides  over  the  meetings  of  the  cabinet/ 

Cabinet    government     is    most     commonly    found     in  ParUa- 
so-called   monarchical   states,  where   the  conditions   most  Repu"^ 
favorable  to  its  success  are  more  generally  present  than  ^" 
elsewhere.     Nevertheless  it  is  sometimes  found  in  repub- 
lics, particularly  those  like   France,  in  which  monarchical 
traditions  are  strong.     It  has  also  been  introduced  into 
some   of   the    Latin-American    republics,    notably   Chile, 
Haiti,  San  Domingo,  and  Venezuela;  but  in  none  of  them 
has  the  system  received  anything  like  a  perfect  develop- 
ment or  attained  any  high  degree  of  success.^ 

Presidential    government   as    contradistinguished    from  Presiden- 
cabinet  or  parliamentary  government  is  that  form  in  which  enime°nt" 

^  For  a  comparison  of  the  offices  of  prime  minister  in  England  and  minister- 
president  in  Prussia,  see  Dupriez,  vol.  I,  pp.  369-370. 

^  Of  the  twenty-two  republics  listed  in  the  "  Statesman's  Yearbook  "  only  the  five 
mentioned  have  governments  in  which  the  ministers  are  responsible  to  the  legislature. 
Only  in  the  United  States,  Brazil,  and  Venezuela,  however,  are  the  ministerial 
ofBce  and  legislative  mandate  incompatible.  In  all  the  republics  except  these  three, 
cabinet  members  have  entree  into  the  legislature.  In  view  of  the  fact  that  in 
Venezuela  ministers  may  not  occupy  seats  in  the  legislature,  it  may  be  questioned 
whether  the  cabinet  system  is  really  in  force  there,  since  the  entree  of  the  ministers 
into  the  chambers  is  considered  by  some  writers  as  an  essential  element  in  cabinet 
government.  Sidney  Low,  for  example,  in  his  "Governance  of  England,"  goes  to 
the  extent  of  saying  that  "  the  root  of  the  whole  parliamentary  form  of  government 
is  that  ministers  must  be  members  of  parliament."  On  this  subject  of  cabinet 
government  in  republics,  see  the  recent  work  of  Carette,  "Les  Republiques 
parlementaires "  (1906).  On  the  subject  of  parliamentary  or  cabinet  govern- 
ment in  general,  see  Combothecra,  "  Essai  sur  le  Regime  parlementaire  " ;  Es- 
mein,  "Droit  constitutionnel,"  chs.  4  and  5,  also  an  article  by  the  same  author 
entitled  "Deux  formes  de  Gouvernement,"  in  the  "  Revue  du  Droit  public  et  de  la 
Science  politique,"  February,  1894;  Blauvelt,  "Development  of  Cabinet  Government 
in  England";  Jenks,  "Parliamentary  England  "  ;  Dupriez,  op.  cit.;  Lowell,  "Essays 
in  American  Government, "  chapter  on  "  Cabinet  Responsibility  " ;  Bradford, 
"  Lessons  of  Popular  Government,"  vol.  II,  ch.  30;  Snow,  "Cabinet  Government," 
in  the  "Annals  of  the  American  Academy  of  Political  and  Social  Science,"  July, 
1892;  Todd,  "Parliamentary  Government  in  England,"  vol.  I,  chs.  2-5;  Duguit, 
"Droit  constitutionnel,"  sees.  61  and  144. 


igo  FORMS    OF    GOVERNMENT 

the  executive  is  constitutionally  independent  of  the  legis< 
lature  as  regards  his  tenure  and  to  a  large  extent  also  as 
regards  his  policies  and  acts.  The  executive  may  be,  and 
generally  is,  responsible  to  the  legislature  or  one  chamber 
of  it  for  certain  grave  crimes  and  sometimes  even  for 
lesser  offenses,  and  may  be  impeached  and  upon  convic- 
tion be  removed  from  office;  but  he  is  politically  irre- 
sponsible to  the  legislature  and  cannot  be  removed  from 
office  except  upon  impeachment.  This  is  the  system 
which  prevails  in  the  United  States,  both  in  the  national 
and  local  governments,  in  Switzerland,  and  in  most  of  the 
Latin-American  republics,  and  in  a  modified  form  in  Ger- 
many. Where  the  presidential  system  prevails,  no  dis- 
tinction exists  between  what  we  have  denominated  the 
titular  or  nominal  executive  and  the  real  or  actual  execu- 
tive. There  are  ministers  upon  whom  the  chief  work  of 
the  administration  devolves,  to  be  sure,  but  they  are  not 
members  of  the  legislature  and  rarely  have  entree  to  either 
chamber;  they  do  not  assume  responsibility  for  the  acts  of 
the  executive;  they  are  appointed  by  the  executive  with- 
out regard  to  the  political  complexion  of  the  legislature 
or  the  wishes  of  the  majority  in  control  of  either  chamber; 
they  are,  within  the  limits  of  the  law,  controlled  and  di- 
rected by  the  executive  and  may  be  dismissed  by  him  at 
will.  They  arc,  in  short,  the  ministers  of  the  executive, 
not  of  the  legislature,  administrative  chiefs  rather  than 
parliamentary  leaders.  They  neither  prepare,  introduce, 
nor  advocate  before  the  chambers  the  adoption  of  legis- 
lative measures,  except  in  so  far  as  they  may  do  so  through 
the  agency  of  members  of  the  legislature  who  are  in 
sympathy  with  their  policies.  Votes  of  censure  or  of 
want  of  confidence  by  the  legislature  do  not  affect  them, 
and  when  the  legislature  refuses  to  enact  the  measures 
which  they  suggest,  instead  of  resigning  they  continue  to 
govern  as  though  they  were  In  complete  harmony  with 
the  majority.     It  not  infrequently  happens,  of  course,  that 


ment 


UNITARY   GOVERNMENT  191 

they  belong  to  a  different  political  party  from  that  which 
is  in  control  of  one  or  both  of  the  chambers  of  the  legisla- 
ture, in  which  case  the  presidential  system  would  break 
down  were  their  tenure  dependent  upon  the  support  of  the 
majority.  From  this  it  will  be  seen  that  the  one  feature 
which  distinguishes  presidential  government  from  the  par- 
liamentary or  cabinet  system  is  the  almost  complete  iso- 
lation of  the  executive  branch  from  the  legislature,  and  its 
independence  of  the  same  body  in  respect  to  its  tenure 
and  powers.^ 

III.    UNITARY,  FEDERAL,  AND  CONFEDERATE    GOVERNMENT 

Considered  from  the  point  of  view  of  the  concentration  Unitary 
or  distribution  of  power,  governments  may  be  classified  as  ^°^^''°- 
unitary  and  federal.  If  the  powers  of  government  are 
concentrated  in  one  supreme  organ  or  organs  that  are 
located  at  one  common  center,  and  from  which  all  local 
governing  authorities  derive  their  existence  and  powers, 
the  government  is  both  unitary  and  centralized.  In  such 
a  system  there  is  a  single  common  source  of  authority,  and 
hence  but  one  supreme  will  is  exerted.  For  convenience 
of  administration  the  territory  of  the  state  may  be  sub- 
divided into  circumscriptions  or  districts,  in  each  of  which 
a  local  government  may  be  established  and  to  which  certain 
powers  of  a  local  character  may  be  delegated  by  the  cen- 
tral government;  but  so  long  as  the  local  organizations  are 
the  mere  creations  of  the  central  power  and  exist  at  its 
will  and  derive  their  powers  from  it  and  it  alone,  the  gov- 

*  For  an  argument  in  favor  of  allowing  the  heads  of  departments  of  the 
United  States  government  seats  in  Congress  and  of  making  them  politically  re- 
sponsible to  Congress,  see  Bradford,  "Lessons  of  Popular  Government,"  vol.  II, 
ch.  30.  For  an  argument  against  such  a  proposition,  see  an  article  by  Freeman 
Snow  in  the  "Annals  of  the  American  Academy  of  Political  and  Social  Science," 
July,  1892.  The  subject  is  also  discussed  by  Lowell  in  his  "Essays  on  Govern- 
ment," chapter  on  "Cabinet  Responsibility."  See  also  Wilson,  "Congressional 
Government,"  ch.  5. 


192  FORMS   OF    GOVKRNMKXr 

ernmental  system  is  unitary  in  cliaractcr.  These  local 
organizations  are  nothing  more  than  parts  of  the  central 
government,  created  to  act  as  its  agents;  in  short,  they 
have  no  independent  wills  of  their  own.  In  such  a  system 
there  is  no  local  self-government  existing  independently 
of  the  will  of  the  central  government,  but  only  such  as  the 
latter  may  choose  to  allow.  Examples  of  such  systems 
of  government  are  those  of  England,  France,  Spain,  Portu- 
gal, Italy,  and  most  of  the  other  states  of  Europe.  In 
none  of  them  do  we  find  a  constitutional  distribution  of 
powers  between  a  central  government  and  a  number  of 
local  governments,  each  with  a  constitution  and  political 
organization  of  its  own  creation.  There  are  local  gov- 
ernments, to  be  sure,  such,  for  example,  as  the  counties  in 
England,  the  departments  and  communes  in  France,  the 
provinces  in  Belgium  and  Italy,  etc.;  but  all  such  govern- 
ments are  nothing  but  the  creatures  and  agents  of  the 
central  authorities  and  enjoy  little  or  no  constitutional 
protection  against  central  interference  and  control. 
Federal  If,  on  the  Contrary,  the  government  of  the  country  is 

distributed  by  the  constitution  between  a  central  organiza- 
tion and  a  number  of  local  organizations,  the  latter  of 
which  are  not  ordinarily  the  creatures  or  agents  of  the 
former,  but  owe  their  existence  to  the  general  constitu- 
tion in  the  sense  that  their  spheres  are  determined  by 
it,  the  government  is  said  to  be  federal  in  character. 
Federal  government  may  be  defined  as  a  system  of  central 
and  local  government  combined  under  a  common  sover- 
eignty, both  the  central  and  local  organizations  being 
supreme  within  definite  spheres,  marked  out  for  them  by 
the  general  constitution.  It  is  dual  government  as  con- 
tradistinguished from  unitary  government,  and  implies 
local  self-government  as  opposed  to  centralized  govern- 
ment. It  represents  a  sort  of  compromise  between  uni- 
tary government  and  confederate  government.  Contrary 
to  the  principle  which  underlies  unitary  government,  the 


Govern- 
ment 


FEDERAL   GOVERNMENT  193 

local  organizations  under  the  federal  system  are  not  the 
direct  creations  of  the  central  government;  but  in  most 
federal  systems  the  reverse  is  true,  that  is,  the  central 
government  has  been  created  by  the  local  organizations 
through  the  act  of  federation.  The  territorial  areas  of 
these  local  organizations  are  not  therefore  mere  adminis- 
trative districts,  but  autonomous  and,  in  a  certain  sense, 
self-created  political  communities,  having  their  own  con- 
stitutions and  political  systems.  The  central  and  local 
governments  are  not,  however,  totally  separate  and  dis- 
connected from  each  other  in  organization.  Federal  gov- 
ernment is  not,  as  is  often  loosely  said,  the  central 
government  alone,  but  it  is  a  system  composed  of  the 
central  and  local  governments  combined.  The  local  gov- 
ernments are  as  much  a  part  of  the  federal  system  as  the 
central  government  is,  though  neither  is  subject  to  the 
control  of  the  other.  In  most  federal  systems  the  com- 
ponent parts  participate  in  the  organization  of  the  cen- 
tral government.  In  the  German  Empire  and  the  United 
States,  for  example,  the  upper  chambers  of  the  national 
legislature  are  composed  of  members  chosen  by  a  branch  of 
the  state  government  rather  than  by  the  people.  Thus  a 
connecting  link  between  the  central  and  local  governments 
is  established,  which  serves  to  minimize  the  tendency  to 
mutual  jealousy  and  to  strengthen  good  feeling  between 
them.^ 

The  principle  upon  which  the  powers  of  government  are  Distnbu- 
distributed  between  the  central  and  local  organizations  in  a  po°e° s  in 
federal  system  is,  that  those  affairs  which  are  of  common  a  Federal 
interest  to  all  the  component  parts  of  the  federation  and 
which  require  uniformity  of  regulation  should  be  placed 
under  the  control  of  the  central  government,   while  all 
matters  not  of  common  concern  should  be  left  to  the  care 

*This  was  dwelt  upon  by  Hamilton  in  "The  Federalist,"  No.  62.  See  also 
Haynes,  "The  Election  of  Senators,"  pp.  12-13;  and  Sidgwick,  "Elements  of  Poli- 
tics," p.  535. 

POL.  SCI.  — 13 


194  FORMS   OF   GOVERNMENT 

of  the  local  governments.*  In  short,  there  should  be  one 
government  for  national  affairs  and  a  number  of  local  gov- 
ernments for  local  affairs.  In  respect  to  the  former,  there- 
fore, federal  government  resembles  unitary  government, 
while  in  respect  to  the  latter  it  is  more  like  confederate 
government.  Opinions  differ,  however,  as  to  what  affairs 
require  uniformity  of  regulation  and  what  should  be  left 
to  local  regulation,  and  hence  the  line  of  separation  between 
general  and  local  matters  is  in  practice  drawn  differently 
in  different  federal  systems.  In  most  states  having  the  fed- 
eral form  of  government,  however,  such  affairs  as  foreign 
relations  and  international  intercourse,  war  and  peace, 
interstate  and  foreign  commerce,  coinage  of  money,  patents 
and  copyrights,  have  been  placed  under  the  control  of  the 
central  government.  In  international  relations  the  local 
governments  are  non-entities  and  are  officially  unknown, 
though,  as  will  be  pointed  out  later,  they  have  shown  them- 
selves able  in  certain  instances  to  interpose  obstacles  in  the 
way  of  the  successful  prosecution  of  a  common  foreign 
policy  by  the  central  government.^  In  the  more  recently 
established  federal  systems  of  Europe  and  Latin-America 
the  notion  of  what  requires  uniformity  of  regulation  and 
what  will  permit  of  variety  of  control  is  somewhat  differ- 
ent from  that  which  has  prevailed  in  the  United  States,  and, 
consequently,  the  principle  of  distribution  has  been  differ- 
ent. In  these  states  many  affairs  are  treated  as  being  of 
general  interest  and  hence  requiring  uniformity  of  regula- 

'  Compare  Dicey,  "Law  of  the  Constitution,"  p.  131;  and  Freeman,  "History  of 
Federal  Government,"  pp.  3-4.  It  may  be  noted  in  this  connection  that  in  Ger- 
many the  division  of  powers  between  the  imperial  and  state  governments  is  not  the 
same  in  the  domains  of  legislation  and  administration.  In  legislative  matters  the 
competence  of  the  Empire  is  much  wider  than  it  is  in  regard  to  administration 
since  the  execution  of  the  imperial  laws  devolves  for  the  most  part  upon  the 
governments  of  the  individual  states,  as  was  pointed  out  in  the  preceding  chapter. 

^  In  Germany  and  Switzerland,  on  the  contrary,  the  local  organizations  have  a 
limited  power  of  foreign  intercourse,  and  some  of  the  German  states  also  retain 
the  right  of  coinage. 


FEDERAL   GOVERNMENT  1 95 

tion,  which  in  the  United  States  are  left  to  local  regulation. 
Thus,  in  Canada  and  the  German  Empire  the  whole  body 
of  civil,  criminal,  and  commercial  law  and  the  law  of  pro- 
cedure, as  well  as  the  law  of  marriage  and  divorce,  is 
national,  not  local ;  that  is,  instead  of  separate  and  widely 
varying  legal  systems  in  these  domains,  there  is  a  single 
uniform  code  for  all  the  component  parts  of  the  empire. 
The  evils  that  have  arisen  in  the  United  States  in  conse- 
quence of  the  extraordinary  variety  of  legislation,  espe- 
cially in  respect  to  certain  businesses  and  occupations  that 
are  really  national  in  scope  rather  than  local,  have  recently 
aroused  discussion  in  many  quarters  in  favor  of  increasing 
the  powers  of  the  national  government  along  various  lines.* 

Two  methods  have  been  followed  in  distributing  the  pow-  Methods 
ers  of  government  between  the  central  and  local  organiza-  uting  the" 
tions,  where  the  federal  system  prevails.     In  most  such  Powers  of 
states  the  powers  intrusted  to  the  central  government  are  ment 
specifically  enumerated.      To  the   local  governments  are 
reserved  all  the  remaining  powers  except  such  as  may  be 
specifically  prohibited.     The  central  government  is  thus 
an  authority  of  delegated  powers,  while  the  local  govern- 
ments are  authorities  of  residuary  powers.     In  other  words, 
the   competence  of   the   central  government   is   positively 
determined  by  the  constitution,   while  that  of  the  local 
governments  is  negatively  determined.     The  presumption 
of  law  in  case  of  doubt,  therefore,  is  against  the  existence 
of  any  power  claimed  by  the  central  government  and  in 
favor  of  any  power  claimed  by  the  local  governments.     In 
the  federal  system  of  Canada,  however,  a  somewhat  differ- 
ent  principle   of   distribution    prevails.     There   the    local 
governments  are  authorities  of  delegated  powers,  while  the 
central  government  is  one  of  both  delegated  and  reserved 
powers.^     Whatever  may    be  the  method  or  principle  of 

'  See  an  address  by  Elihu  Root  entitled  "  The  States,  how  to  Preserve  them." 
*  British  North  America  Act,  sees.  91-92;   Munro,  "Government  of  Canada," 
especially  chs.  22  and  23. 


196  FORMS   OF   GOVERNMENT 

distribution,  or  the  nature  and  extent  of  power  delegated 
or  reserved  to  either  government,  neither  may  enlarge 
its  competence  or  distribute  the  powers  of  government 
differently  from  the  way  in  which  they  have  been  distrib- 
uted by  the  constitution.  Only  the  sovereign  itself  can  do 
that.  In  some  federal  systems,  however,  the  central  gov- 
ernment is  given  a  limited  control  over  the  organization 
and  acts  of  the  local  governments.  Thus,  in  the  United 
States  it  is  made  the  duty  of  the  national  government  to 
see  that  only  republican  governments  shall  be  maintained 
by  the  individual  states,  from  which  it  may  be  inferred 
that  the  national  government  may  prohibit  such  local  or- 
ganizations as  may  not  in  its  judgment  conform  to  this 
requirement.  In  Canada  the  Dominion  government  has 
the  power  to  disallow  the  acts  of  the  provincial  legislatures; 
likewise  in  the  federal  republic  of  Venezuela  the  national 
government  may  veto  the  acts  of  the  local  legislatures. 
Both  in  Germany  and  Switzerland  the  central  authorities 
have  a  sort  of  jus  suprema  inspectionis  over  the  operations 
of  the  local  governments,  especially  when  they  are  charged 
with  carrying  out  the  acts  of  the  central  government.  In 
the  German  Empire  the  imperial  government  may  by  the 
process  of  federal  execution  compel  a  delinquent  or  recalci- 
trant member  of  the  empire  to  perform  its  obligations  to  the 
empire. 

Confederate  government  is  that  form  of  government  in 
which,  as  to  territory  and  population,  the  state  is  coexten- 
sive in  its  own  organization  with  the  organization  of  the  lo- 
cal government.^  In  a  confederate  system,  as  in  the  federal 
system,  there  is  a  central  organization ;  but  instead  of  a  sin- 
gle sovereignty  there  are  as  many  sovereignties  as  there  are 
local  governments.  The  central  government  is  merely  the 
agent  of  the  states  composing  the  confederacy,  and  its  juris- 
diction is  limited  to  a  very  few  concerns.  In  operation  its 
commands  extend,  as  has  been  said,  not  to  the  individ- 

'  Burgess,  op.  cU.,  vol.  II,  p.  6. 


BUREAUCRATIC   VERSUS  POPULAR  GOVERNMENT    197 

uals  who  Inhabit  the  confederacy,  but  are  addressed  to 
the  confederated  states  themselves  and  reach  the  indi- 
viduals for  whom  they  are  intended  only  mediately  and 
indirectly,  through  the  medium  of  the  state  organizations. 
A  confederacy  in  reality  has  no  citizens  or  subjects  who 
owe  it  direct  and  immediate  allegiance.  Its  jurisdiction 
generally  includes  only  such  matters  as  relate  to  foreign 
relations,  defensive  war,  and  possibly  a  few  matters  of  an 
interstate  character.  Usually  it  possesses  no  power  over 
the  sources  of  its  own  revenue  supply,  but  is  dependent 
upon  the  voluntary  contributions  of  the  confederated  states. 
Finally,  it  lacks  stability  and  permanence,  and  its  existence 
is  precarious,  since  it  belongs  to  the  component  members 
to  withdraw  from  the  confederation  at  will  or  refuse  to  be 
bound  by  its  acts  and  resolutions.  It  is  a  transitory  form 
of  political  organization  which  usually  develops  into  the 
federal  system  or  dissolves  into  its  constituent  elements. 

IV.  BUREAUCRATIC  VERSUS   POPULAR  GOVERNMENT 

From  the  standpoint  of  the  organization  and    spirit  of  Bureau- 
the    administrative   service,   governments  may  be  classi 
iied  as  bureaucratic  and  popular.      A  bureaucratic  govern-  ^^^^ 
ment  is  one  which  is  composed  of  administrators  especially 
trained  for  the  public  service,  who  enter  the  employ  of 
the  government  only  after  a  regular  course  of  study  and 
examination,  and  who  serve  usually  during  good  behavior 
and  retire  on  pensions.     Under  such  a  system  the  govern- 
mental service  acquires  the  character  of  a  profession,  its  of- 
ficials are  subject  to  a  rigid  discipline,  and  they  tend  to 
acquire  an  esprit  de  corps  somewhat  similar  to  that  found 
among  the  soldiers  of  a  regular  army.    They  devote  their  en- 
tire time  to  the  discharge  of  their  public  duties  and  have  no 
other  occupation.^     They  therefore  tend  to  become  a  class 

'Compare  Goodnow,  "Comparative  Administrative  Law,"  vol.  II,  p.  8;   and 
Bagehot,  "The   English  Constitution"  (American  ed.),  pp.   260-266.     Strictly 


cratic 
Govern- 


198 


FORMS   OF    GOVERNMENT 


Merits  of 
the  Bu- 
reaucratic 
System 


apart  from  the  rest  of  the  population,  possessing  different 
ideals  and  interests.  In  a  large  measure  such  government  is 
irresponsible  to  the  people,  and  is  little  affected  by  public 
opinion  —  it  is,  in  short,  very  largely  a  government  of 
men  rather  than  of  laws.  It  is  marked  by  an  excessive 
formalism,  is  inclined  to  parade  and  pomp,  and  has  a  ten- 
dency to  overemphasize  administrative  routine  rather  than 
conditions  and  principles  —  in  short,  it  tends,  as  Burke 
remarked,  to  think  more  of  forms  than  of  substance.  The 
most  extreme  example  of  a  bureaucracy  which  the  world 
has  seen  in  modern  times,  perhaps,  was  that  which  existed 
in  Prussia  from  1720  to  1808.  A  bureaucracy  of  a  less 
absolute  character  was  that  which  existed  in  France  under 
Napoleon  for  a  time  after  1808.  In  varying  degrees  of 
development  it  exists  to-day  in  all  the  so-called  monarchi- 
cal states  of  Europe,  especially  in  Prussia  and  Russia,  and 
to  a  less  degree  in  England.  Commonly  thought  of  only 
in  connection  with  monarchical  states,  its  forms  and  meth- 
ods, and  to  some  extent  its  spirit,  are,  nevertheless,  found 
in  the  governmental  systems  of  many  republican  states  as 
well.^ 

The  chief  merit  of  bureaucratic  government  is  that 
it  represents  high  skill  and  ability.  Its  officials  are  spe- 
cially trained  for  the  public  service.  It  is  thus  more  efn- 
cient  than  popular  government;  and  if  skilled,  efBcient,  and 
economic  administration  were  the  only  or  the  main  end  of 
government,  little  fault  could  be  found  with  such  a  system. 
"It  accumulates  experience,"  says  John  Stuart  Mill,  "ac- 
quires well-tried  and  well-considered   traditional  maxims 

speaking,  the  distinction  between  bureaucratic  and  popular  government  is  not  so 
much  one  of  form  as  of  spirit,  but  I  have  treated  it  in  this  chapter  through  consid- 
erations of  convenience  rather  than  of  logic. 

*  On  bureaucratic  government,  see  Brater  and  Bluntschli,  "Deutsches  Staats- 
worterbuch,"  vol.  II,  pp.  293-297  (art.  "  Bureaukratie") ;  Goodnow,  op.  cit.,  vol. 
II,  pp.  8-9;  Mill,  "Representative  Government,"  pp.  109-110;  Block,  "Diction- 
naire  de  la  Politique,"  vol.  I,  pp.  271-275;  and  Bachem,  "  Staatslexikon,"  vol.  I, 
pp.  1070-1078. 


BUREAUCRATIC    VERSUS  POPULAR   GOVERNMENT      199 

and  makes  provision  for  appropriate  practical  knowledge 
in  those  who  have  the  actual  conduct  of  affairs."  * 

But  as  we  have  attempted  to  show,  efficiency  of  adminis-  its 
tration  is  not  the  sole  end  to  be  attained  in  any  govern-  ^^^^<=*^ 
mental  system.  The  education  of  the  people  in  political 
matters,  the  stimulation  of  popular  interest  in  public  affairs, 
and  the  cultivation  of  loyalty  and  patriotism  on  the  part  of 
the  masses  should  be  among  the  important  aims  of  every 
political  system,  and  this  cannot  be  accomplished  by  the 
bureaucratic  system.  It  is  not  favorable  to  the  develop- 
ment of  patriotism,  self-reliance,  or  loyalty.  Moreover,  it 
is  not  without  defects  inherent  in  its  own  nature.  "The 
disease,"  said  Mill,  "which  afflicts  bureaucratic  govern- 
ments and  of  which  they  die  is  routine.  They  perish  by 
the  mutability  of  their  maxims  and  still  more  by  the 
universal  law  that  whatever  becomes  a  routine  loses  its 
vital  principle."  Such  a  government,  he  said,  tends  to 
become  a  "pedantocracy."  It  is  the  only  government, 
some  one  has  remarked,  for  which  the  philosopher  can  find 
no  defense.^ 

Contradistinguished  from  bureaucratic  government  is  Popular 
popular  government,  that  is,  government  by  persons  ^°''"^- 
drawn  at  regular  intervals  from  the  ranks  of  the  people, 
who  after  a  brief  service  return  to  the  private  walks 
of  life.  Generally  they  are  without  special  training;  not 
infrequently  they  serve  without  pecuniary  compensation; 
and  often  they  are  during  the  term  of  their  public  service 
engaged  in  other  occupations.  Under  such  a  system  most 
of  the  offices  are  open  to  all  without  preliminary  prepara- 
tion or  examination;  few  or  no  professional  qualifications 
are  required,  and  the  official  class  never  develops  a  caste 
system  or  loses  touch  with  the  people.  The  officers  are 
more  or  less  influenced  by  public  opinion,  and  in  the  dis- 

*  "Representative  Government"   (Universal  Library  edition),  p.  109. 
'  Ibid.,  p.  no.     See  also  F.   Rohmer,    "Deutschlands  alte  und  neue  Bureau 
kratie";  also  article  "  Bureaukratie"  in  Brockhaus,  " Konversations-Lcxikon." 


ment 


2CX) 


FORMS   OF    GOVERNMENT 


Individu- 
alistic 
Govern- 
ment 


Paternal 
Govern- 
ment 


charge  of  their  duties  are  more  often  subject  to  legislative 
than  administrative  control. 

Finally,  from  the  point  of  view  of  their  functions  and 
sphere  of  activity,  governments  may  be  denominated  as 
individualistic  and  paternal.^  A  government  of  the  former 
type  is  one  whose  activities  are  limited  mainly  to  the  simple 
police  functions  of  maintaining  the  peace,  order,  and  se- 
curity of  society  and  the  protection  of  private  rights.  A 
paternal  government  is  one  whose  functions  are  not  lim- 
ited merely  to  restraining  wrong-doing  and  the  protection 
of  private  rights,  but  which  goes  farther  and  endeavors  to 
promote  by  various  means  the  social  well-being  of  the 
people.  It  undertakes  to  perform  for  society  many 
services  which  might  be  performed  as  easily  through  pri- 
vate initiative,  on  the  ground  that  they  can  be  more  effi- 
ciently and  economically  done  by  the  government  than  by 
private  individuals.  Such  a  government  may  own  and 
operate  various  industries,  conduct  businesses  like  insur- 
ance, provide  pensions  for  the  old,  the  sick,  and  the  infirm, 
and  in  various  ways  care  for  the  social  interests  of  the 
people. 


Govern- 
mental 
Trans- 
forma- 
tions 


V.     SUCCESSION    OF   GOVERNMENTAL   FORMS 

No  state  has  retained  the  same  form  of  government 
throughout  its  whole  history.  Governments,  like  living 
beings,  are  constantly  changing  their  forms  so  as  to  adapt 
themselves  to  the  altered  conditions  of  a  new  environment. 
Thus,  Athens  was  first  ruled  by  kings,  then  by  an  aristoc- 
racy, later  by  tyrants,  then  by  a  democracy,  and  finally 
again  by  kings.  So  Rome  went  through  a  circle  of  politi- 
cal transformations.  It  began  as  a  city  kingdom,  then  it 
became  a  republic,  and  finally  an  empire  ruled  by  Caesar. 
The  government  of  France  within  half  a  century  passed 

*  What  was  said  above  in  regard  to  the  distinction  between  bureaucratic  and  pop- 
ular government  and  the  reason  for  treating  the  subject  here  applies  equally  to  the 
distinction  between  individualistic  and  paternal  government. 


Ideas  as 
to  the 


SUCCESSION   OF    GOVERNMENTAL   FORMS  201 

through  the  forms  of  an  absolute  monarchy,  a  republic, 
an  empire,  a  kingdom,  again  a  republic,  again  an  empire, 
and  for  the  third  time  a  republic. 

Many  of  the  early  writers  undertook  to  reduce  the  succes-  Early 
sive  transformations  through  which  governments  pass  to 
a  regularly  ordered  sequence  or  rule  of  general  application.  Order  of 
There  existed  in  early  times  a  popular  belief  that  there  was  sion 
a  natural  order  of  political  development  through  which  all 
states  must  pass  in  the  course  of  their  history.  Plato,  for 
example,  taught  that  the  natural  course  of  evolution  was 
from  aristocracy,  the  rule  of  the  best,  to  timocracy,  the  rule 
of  the  military,  then  to  oligarchy,  then  to  the  rule  of  the 
mob,  and  finally  to  tyranny.^  Aristotle,  while  differing 
from  Plato  as  to  the  order  of  development,  nevertheless 
believed  that  forms  of  government  followed  one  another 
according  to  a  regular  order  of  succession.  According  to 
his  rule  the  state  began  as  a  hereditary  monarchy,  which  in 
time  passed  into  an  aristocracy.  The  latter  in  the  course 
of  time  became  an  oligarchy,  the  oligarchy  became  a  tyranny, 
and  the  latter  ultimately  passed  into  a  democracy.  Ordi- 
narily after  an  unsatisfactory  experience  with  democracy  a 
monarchy  would  be  reestablished,  and  the  cycle  thus  begun 
again  would  be  passed  through  as  before.^  Polybius  taught 
that  in  the  beginning  the  strongest  person  physically  in  the 
state  ruled,  that  is,  the  state  began  originally  as  a  mon- 
archy. Then  followed  a  period  when  justice  rather  than 
physical  power  became  the  basis  of  the  right  to  rule,  dur- 
ing which  time  a  form  of  government  called  by  Polybius 
"royalty"  (Basileia)  prevailed.  This  form  in  time  de- 
generated into  tyranny,  only  to  be  overthrown  c\"cntually, 
and  an  aristocracy  set  up  in  its  place.  This  in  the  course 
of  time  was  succeeded  by  oligarchy,  which  in  turn  was  over- 
thrown by  the  people  and  a  democracy  was  established.' 
Machiavelli  laid  down  almost  the  same  rule  regarding  the 

>  "The  Republic,"  bk.  VIII.  ^  gee  his  "Politics,"  bk.  VI. 

'  Livius,  vol.  I,  p.  2. 


202 


FORMS   OF   GOVERNMENT 


Schleier- 
macher's 
Theory 


order  of  natural  succession  in  respect  to  the  political  forms 
of  ancient  states. 

The  noted  German  scholar  Schleiermacher  asserted  that 
political  transformations  are  determined  largely  by  the 
spread  of  political  self-consciousness.  At  first,  he  said, 
political  consciousness  was  not  highly  developed  in  any 
minds,  though  diffused  equally  among  the  masses.  The 
democratic  form  of  government  naturally  corresponded 
to  this  condition  and  was  therefore  the  first  state  form. 
In  the  course  of  time  a  higher  state  consciousness  devel- 
oped and  concentrated  itself  in  a  few  minds.  This  led 
to  the  establishment  of  aristocracy.  Finally  the  state 
consciousness  concentrated  itself  in  a  single  individual, 
and  monarchy,  the  highest  form  of  state,  succeeded.^ 
There  is  a  residuum  of  truth  in  the  principle  of  Schleierma- 
cher's  law,  but  the  weight  of  opinion  is  against  the  order  in 
which  he  conceived  political  consciousness  to  have  spread. 
It  is  more  reasonable  to  believe  that  it  existed  at  first  in 
but  one  or  at  best  only  a  very  few  minds,  and  that  it  grew 
and  spread  slowly  and  became  diffused  throughout  the 
mass  of  the  population  rather  late  in  the  life  of  the  state. 
It  seems  more  probable,  therefore,  that  the  order  of  suc- 
cession was  the  reverse  of  that  which  Schleiermacher  laid 
down ;  that  is,  the  state  began  with  a  monarchical  form  of 
organization,  which  in  time  became  aristocratic,  and 
finally,  when  political  consciousness  became  general,  the 
organization  of  the  state  became  democratic.  History, 
indeed,  shows  that  this  has  generally  been  the  order  of 
development.^ 


*  Seehis"  Uber  die  verschiedenen  Staatsformen."  For  a  criticism  of  Schleierma- 
cher's  doctrine  see  Bluntschli,  "  Politik,"  pp.  309  ff. 

^Compare  Batbie,  "Traite  de  Droit  public  et  administratif,"  vol.  I,  ch.  35. 
This  author  considers  at  length  the  succession  and  kinds  of  state  forms  and  shows  that 
generally,  though  not  always,  of  course,  monarchy,  aristocracy,  and  democracy  have 
followed  each  other  in  the  order  mentioned.  The  necessities  of  self-defense  give 
rise,  he  says,  to  the  first  form  of  political  organization,  namely,  a  military  monarchy. 
After  the  struggle  which  has  produced  it  is  over,  the  organization  becomes  aristo- 


SUCCESSION   OF    GOVERNMENTAL   FORMS  203 

Bluntschli,  a  critic  of  Schleiermachcr,  held  that  the  Biunt- 
normal  forms  of  government  succeeded  each  other  in  the  Theory 
following  order:  first,  theocracy;  second,  monarchy; 
third,  aristocracy;  and  fourth,  democracy;  while  the 
abnormal  forms  succeeded  each  other  in  the  following  order: 
hierarchy,  tyranny,  oligarchy,  and  ochlocracy.  Each  of 
these  forms  not  infrequently  passed  through  several  trans- 
formations. For  example,  monarchy  began  in  its  pure 
form,  then  it  became  aristocratic  {stdndische)  in  char- 
acter, and  finally,  democratic.  Republics  likewise  passed 
through  monarchical,  aristocratic,  and  democratic  stages.* 

Regarding  the  merits  of  the  rule  laid  down  by  the  early  No  Law  of 
writers  in  respect  to  the  succession  of  state  forms,  there  can  inPomT-°° 
be  but  one  conclusion,  namely,  that  such  changes  do  not  cai  Trans- 
follow  each  other  in  accordance  with  any  law  such  as  reigns  tions 
in  the  physical  world.  History  furnishes  abundant  evi- 
dence of  this  truth.  For  example,  the  early  monarchies 
did  not  always  pass  into  tyrannies,  but  often  the  latter 
resulted  from  strife  among  the  leaders  of  an  aristocracy. 
Not  infrequently  monarchies  have  been  transformed  into 
democracies,  aristocracies  into  monarchies,  and  democracies 
into  aristocracies.  Bodin,  in  his  treatise  on  the  republic, 
gives  numerous  historical  examples  of  such  transforma- 
tions. In  modern  times  monarchies  have  more  often 
been  succeeded  by  democracies  than  by  aristocracies. 
During  the  sixteenth  and  seventeenth  centuries  in  many 
states  of  Europe  monarchical  governments  of  an  abso- 
lute type  were  erected  upon  the  ruins  of  feudal  aris- 
tocracies. A  study  of  the  subject  indeed  will  show  that 
the  exceptions  are  more  numerous  than  the  rule.  There 
are,  of  course,  certain  laws  of  political  evolution,  but  no 
such  sequence  of  succession  as  was  described  by  the  early 
writers.     Not  all  states  have  passed  through  the  same  stages 

cratic.     Finally  the   masses   demand   and   obtain  a  share  in  the  management  of 
public  affairs,  and  the  government  becomes  democratic  in  organization. 

'  "Politik,"  pp.  310-312;  see  also  his  "  Allgemeine  Staatslehre,"  bk.  IV,  ch.  10. 


204  FORMS   OF    GOVERNMENT 

or  undergone  the  same  transformations.  The  changes 
that  have  occurred  in  some  have  been  the  result  of  internal 
revolution,  in  others  the  result  of  conscious  adoption  or 
imitation,  Woolsey  justly  remarks  that  if  there  were  such 
a  law  of  succession  as  described  by  Polybius,  it  would 
afford  a  most  hopeless  prospect  to  the  world/  It  would, 
in  short,  mean  the  reign  of  fatalism  and  of  death  in  the  do- 
main of  politics. 

'  "Political  Science,"  vol.  I,  p.  469.  See  also  Leacock,  "Elements  of  Political 
Science,"  pp.  46-47;  Rousseau,  "Contrat  social,"  bk.  Ill,  ch.  11;  and  Laveleye, 
"  Le  Gouvernement  dans  la  D^mocratie,"  bk.  V,  ch.  2. 


Form 


CHAPTER  VII 

FORMS   OF  GOVERNMENT  (Continued) 

MERITS   AND   DEMERITS 

I.     MONARCHICAL   GOVERNMENT 

From  a  consideration  of  the  various  forms  of  govern-  Antiquity 
ment,  from  the  standpoint  of  their  structural  organization,  yer^gJJuy 
we  come  next  to  consider,  in  the  light  of  reason  and  experi-  °^  ^^^ 
ence,  the  elements  of  strength  and  weakness  of  each.  Of  chicai 
all  the  types  considered,  the  oldest  and  most  widely  dis- 
tributed is  the  so-called  monarchical  form.  It  has  existed 
from  the  earliest  times  and  is  to-day  universal  in  Asia  and 
nearly  so  in  Europe.  Until  the  latter  part  of  the  eight- 
eenth century  it  was  widely  believed  to  be  the  nearest 
approach  to  a  perfect  form  of  political  organization  that 
could  be  devised  by  the  ingenuity  of  man.  Of  its  merits 
the  English  philosopher  and  historian  David  Hume  wrote 
near  the  middle  of  the  eighteenth  century:  "Though  all 
kinds  of  government  be  improved  on  in  modern  times,  yet 
monarchical  government  seems  to  have  made  the  greatest 
advance  to  perfection.  It  may  now  be  affirmed  of  civilized 
monarchies,  what  was  formerly  said  of  republics  alone, 
that  they  are  a  government  of  laws,  not  of  men.  They  are 
found  susceptible  of  order,  method,  and  constancy  to  a  sur- 
prising degree.  Property  is  there  secure;  industry  is 
encouraged ;  the  arts  flourish ;  and  the  prince  lives  among 
his  subjects  like  a  father  among  his  children."  *  And,  he 
adds,  there  are  more  "sources  of  degeneracy"  to  be  found 
in  free  governments  like  England  than  in  France,  which  was 
then,  in  Hume's  estimation,  "the  most  perfect  model  of 
pure  monarchy,"  a  judgment  which  Sir  Henry  Maine  pro- 

*  "Essays,"  no.  12,  entitled  "Of  Civil  Liberty." 
205 


2o6 


FORMS   OF   GOVERNMENT 


Absolute 
V.  Limited 
Monarchy 


Merits  of 
Absolute 
Monarchy 


nounces  to  be  quite  lacking  in  the  essential  element  of 
truth/  "All  the  world,"  said  Bossuet,  "began  with  mon- 
archy, and  almost  all  the  world  has  been  preserved  by  it  in 
the  most  natural  state."  It  has  its  foundation,  continued 
the  same  writer,  in  the  paternal  empire,  that  is,  in  nature 
itself.' 

In  judging  of  the  merits  of  monarchical  government  we 
must  distinguish  between  the  two  forms  in  which  it  mani- 
fests itself ;  namely,  that  form  in  which  the  monarch  is  both 
sovereign  and  executive,  and  that  form  in  which  he  is  execu- 
tive only,  and  usually  only  titular  executive  at  that.  In 
the  former  the  whole  power  of  government,  the  whole 
source  of  authority,  is  in  the  hands  of  a  single  person, 
however  numerous  may  be  his  subordinates. 

In  favor  of  this  form  of  government  may  be  mentioned 
the  elements  of  strength,  vigor,  and  energy  of  action,  unity  of 
counsel,  promptness  of  decision,  and  simplicity  of  organiza- 
tion.^ "Where  such  a  system  prevails,"  said  Rousseau, 
"the  will  of  the  people  and  the  will  of  the  prince,  the  public 
force  of  the  state  and  the  individual  force  of  the  government, 
all  respond  to  the  same  motive  power ;  all  the  springs  of  the 
machine  are  in  the  same  hand,  all  look  to  the  same  end. 
There  are  no  opposing  movements  which  destroy  each  other, 
and  no  sort  of  constitution  can  be  imagined  in  which  a  slight 
effort  produces  greater  action."  Rousseau  goes  on  to 
compare  a  skillful  monarch  governing  his  people  throughout 
a  vast  state  and  making  everything  move  while  seeming 
himself  immovable,  to  an  engineer  seated  tranquilly  on  the 
shore  of  a  sea  and  setting  in  motion  without  difficulty  a 
huge  vessel  upon  the  waters.^ 

*  "Popular  Government,"  p.  4. 

'  Quoted  by  De  Parieu,  "  Principes  de  la  Science  politique,"  ch.  2,  p.  ^^. 

'  "Of  all  systems  of  government,"  says  Pradier-Fodere,  "monarchy  is  the  most 
simple,  its  action  the  most  prompt  and  most  energetic,  and  it  has  been  adopted  by  the 
greatest  number  of  nations."     "Principes  generaux  de  Droit  de  Politique,"  etc., 

P-  243- 

*  "Contrat  social,"  bk.  Ill,  ch.  6. 


MONARCHICAL   GOVERNMENT  207 

In  the  early  stages  of  civilization  monarchy  is  undoubt-  its  Place 
edly  well  adapted  to  the  needs  of  a  people  who  have  not  yet  tf^e^s^j 
developed  a  high  political  consciousness  and  who  therefore  cieties 
lack  the  capacity  themselves  for  participating  actively  in 
the  management  of  public  affairs.  Perhaps  no  better  form 
could  be  devised  for  disciplining  uncivilized  peoples,  leading 
them  out  of  barbarism  and  inculcating  in  them  habits  of 
obedience.  John  Stuart  Mill  has  well  remarked  that  "des- 
potism is  a  legitimate  mode  of  government  for  dealing  with 
barbarians,  provided  the  end  be  their  improvement  and  the 
means  be  justified  by  actually  effecting  that  end.  "Lib- 
erty," he  observes,  "as  a  principle,  has  no  application  to  any 
state  of  things  anterior  to  the  time  when  mankind  have 
become  capable  of  being  improved  by  free  and  equal  discus- 
sion. Until  then  there  is  nothing  for  them  but  implicit 
obedience  to  an  Akbar  or  a  Charlemagne,  if  they  are  so  for- 
tunate as  to  find  one."  ^  The  absolute  monarchies  of  the 
medieval  and  early  modern  times  justified  their  existence 
through  their  work  of  consolidation  and  nationalization. 
Popular  government  could  make  no  headway  until  prov- 
inces were  consolidated  into  kingdoms,  classes  and  races  into 
nations,  and  conflicting  jurisdictions  were  unified.  It  was 
the  mission  of  absolute  monarchy  to  establish  the  sover- 
eignty of  the  national  state  in  the  place  of  the  rival  author- 
ities of  the  church,  of  feudalism,  of  free  cities,  and  of  other 
obstacles  which  stood  in  the  way  of  the  development  of  the 
modern  state.  No  other  agency  than  absolute  monarchy 
could  have  wrought  out  so  important  a  result  and  thus 
paved  the  way  for  constitutional  government. 

But  when  all  is  said  that  can  be  said  in  favor  of  the  pure  Objection: 
monarchical  form  of  government,  the  fact  remains  that  it  is  fut^Mon- 
absolute   government;  that  is,   government  in  which   the  ^rchy 
people  for  whose  protection  and  benefit  governments  are 
instituted  have  no  share.     Having  exhausted  its  mission,  its 
raison  d'etre  no  longer  exists.      It  is  government  organized 

»  "  On  Liberty,"  p.  23. 


2o8  FORMS   OF   GOVERNMENT 

and  administered  by  a  single  person  according  to  his  own 
sense  of  what  is  best  and  right  for  those  over  whom  he  reigns, 
and  history  abundantly  confirms  the  truth  of  the  assertion 
that  such  governments  have  more  often  been  administered  in 
the  interests  of  the  monarch  himself  than  in  the  interests  of 
his  subjects/  "It  has  long  been  a  common  form  of  speech," 
says  John  Stuart  Mill,  "that  if  a  good  despot  could  be  in- 
sured, despotic  monarchy  would  be  the  best  form  of 
government."  ^  But,  as  he  goes  on  to  remark,  it  is  a  most 
"pernicious  misconception  of  what  good  government  is." 
Assuming  for  the  sake  of  argument  that  absolute  power  in 
the  hands  of  one  individual  would  never  be  abused,  but  on 
the  contrary  would  insure  a  virtuous  and  inteUigent  admin- 
istration of  the  government;  granting  that  good  laws  would 
be  enacted  and  enforced,  that  justice  would  be  dealt  out  to 
all,  that  the  public  revenues  would  be  wisely  and  judi- 
ciously expended;  in  short,  that  the  despotism  were  the 
wisest  and  most  benevolent  conceivable,  there  are  still 
other  considerations  which  render  it  far  from  being  the  ideal 
polity.  Administrative  efficiency  is  only  one  of  the  tests 
of  a  good  government.  No  government  which  does  not 
rest  upon  the  affections  of  the  people,  which  does  not 
stimulate  among  them  an  interest  in  public  affairs  and 

*  Compare  Sidgwick  ("Development  of  European  Polity, "  pp.  412-413),  who  re- 
marks that  it  is  not  only  a  defect  of  monarchy  in  the  sense  in  which  we  are  here  con- 
sidering it,  that  the  supreme  lawmaking  power  is  in  the  hands  of  a  single  individual, 
who  may  or  may  not  employ  it  in  the  interests  of  the  community,  but  that  the  execu- 
tion of  the  laws  being  under  the  supreme  control  of  the  same  person,  there  is  no  suffi- 
cient guarantee  that  he  will  observe  his  own  laws,  if  passion  or  favor  urges  him  to  break 
them.     See  also  George  Cornwall  Lewis,  "  Government  of  Dependencies,"  p.  20. 

""Representative  Government,"  ch.  3.  "The  tendency  of  all  monarchy," 
declares  Lord  Brougham,  "  is  towards  despotism  and  its  evils;  and  a  constitutional 
monarchy  which  provides  no  checks,  that  is,  a  pure  monarchy,  has  enormous  de- 
fects, even  if  it  should  not  degenerate  into  an  Oriental  despotism.  It  leaves  too  great 
scope  to  the  sovereign's  interests  or  passions,  benefits  the  people  very  little  by  the 
alliance  he  always  forms  with  the  nobles,  gives  facilities  to  humor  his  ambition  by 
wars,  allows  reckless  extravagance  of  every  kind,  encourages  habits  of  costly  ostenta- 
tion and  of  pride  towards  inferiors,  and  begets  a  spirit  of  fawning  and  truckling 
towards  those  in  authority."     "The  British  Constitution,"  Works,  vol.  XI,  p.  3. 


MONARCHICAL   GOVERNMENT  209 

create  an  active,  intelligent,  and  alert  citizenship,  can  be 
called  ideal;  and,  certainly,  no  government  from  which  the 
participation  of  the  people  in  some  form  is  excluded  will 
ever  be  able  to  produce  such  a  body  of  citizens.^ 

The  merits  and  demerits  of  the  second  type  of  monarchy,  Merits  of 
that  is,  the  form  of  monarchy  in  which  the  reigning  prince  M^archy 
is  not  sovereign,  but  merely  an  organ  of  government,  are 
mainly,  though  not  wholly,  those  which  are  associated  with 
the  principle  of  hereditary  tenure  in  the  organization  of  the 
executive.  It  is  this  principle  which  mainly  distinguishes 
the  so-called  constitutional  monarchy  to-day  from  the  repub- 
lic. About  all  that  can  be  said  in  favor  of  the  hereditary 
principle  is  that  it  tends  to  secure  an  uninterrupted  and 
orderly  succession  in  the  executive  office  without  the 
recurring  dangers  and  inconveniences,  the  tumults  and  dis- 
orders, which  are  almost  inseparable  from  the  method  of 
popular  choice.^  It  also  tends  to  promote  continuity  of 
executive  polity  in  the  conduct  of  the  government.     The 

'  Cf.  Goodnow  ("  Comparative  Administrative  Law,"  vol.  II,  p.  10),  who  goes  to 
the  length  of  saying  that  "  the  prime  end  of  all  governmental  systems  should  be  the 
cultivation  in  the  people  of  a  vigorous  political  vitality,  a  patriotic  loyalty,  and 
social  solidarity." 

*  For  a  good  discussion  of  the  advantages  of  the  hereditary  monarchy,  see  Sidgwick, 
"  Elements  of  Politics,"  pp.  437-442.  Compare  the  Marquis  of  Argenson,  who  said, 
"The  right  of  succession  to  the  crown  is  a  method  universally  adopted  to  avoid  the 
horrible  inconveniences  of  election."  "  Considerations  sur  le  Gouvernement," 
p.  108.  A  strong  advocate  of  the  hereditary  monarchy  was  Dr.  Paley,  who  declared 
that  it  was  universally  to  be  preferred  to  an  elective  government.  "Nor  should  it 
be  forgotten  among  the  advantages  of  an  hereditary  monarchy,"  he  said,  "that  as 
plans  of  national  improvement  and  reform  are  seldom  brought  to  maturity  by  the 
exertions  of  a  single  reign,  a  nation  cannot  attain  to  the  degree  of  happiness  and 
prosperity  to  which  it  is  capable  of  being  carried  unless  a  uniformity  of  counsel,  a 
consistency  of  public  measure  and  designs  be  continued  through  a  succession  of 
ages.  This  benefit  may  be  expected  with  greater  probability  where  the  supreme 
power  descends  in  the  same  race,  and  where  each  prince  succeeds,  in  some  sort,  to 
the  aims,  pursuits,  and  dispositions  of  his  ancestors,  than  if  the  crown,  at  every 
change,  developed  upon  a  stranger  whose  first  care  would  commonly  be  to  pull 
down  what  his  predecessor  had  built  up ;  and  to  substitute  systems  of  administration 
which  must  in  their  turn  give  way  to  the  more  favorite  novelties  of  the  next  succea- 
sor."  "Political  and  Moral  Philosophy,"  p.  215. 
POL.  SCI.  — 14 


2IO 


FORMS    OF    GOVERNMENT 


inherent  weakness  in  the  hereditary  principle  is  that  it 
affords  no  guarantee  that  a  strong,  vigorous,  or  trained  per- 
son will  succeed  to  the  office,  but  allows  the  choice  to  be 
determined  by  the  accident  of  birth.  Thus,  as  a  method  for 
securing  fitness  and  character  in  the  executive  office  it  has 
no  merits.  To  intrust  one  man  with  the  government  of 
the  people,  not  because  he  is  the  wisest  or  the  best,  but  be- 
cause he  is  the  son  or  heir  of  another  person,  as  a  principle 
of  politics  has  little  to  commend  it.  History  affords 
numerous  examples  of  immature,  feeble-minded,  and  in- 
competent rulers  succeeding  to  thrones  under  the  operation 
of  such  a  principle.  France,  for  example,  was  governed 
for  more  than  five  hundred  years  by  kings  who  had  not 
reached  the  age  of  twenty-five  years  at  the  time  of  their 
accession  to  the  throne,  and  for  nearly  one  hundred  years  by 
kings  who  had  not  attained  the  age  of  twenty-one.^ 


Forms 
of  Aris- 
tocracy 


II.     ARISTOCRATIC   GOVERNMENT 

In  order  to  form  a  proper  estimate  of  the  merits  and 
demerits  of  aristocratic  government  we  must  distinguish 
between  the  several  forms  under  which  it  manifests  itself. 
There  are  or  have  been,  as  we  have  seen,  aristocracies  of 
birth  or  family;  aristocracies  of  wealth,  and  these  may  be  of 
two  kinds;  aristocracies  of  culture  and  education;  aristocra- 
cies of  elder  statesmen ;  priestly  and  military  aristocracies ; 

*  Sismondi,"  Etudes  sur  les  Constitutions  des  Peuples  libres,"  quoted  by  Woolsey, 
"Political  Science,"  vol.  I,  p.  521.  "No  race  of  kings,"  said  Jefferson,  "has  ever 
presented  above  one  man  of  common  sense  in  twenty  generations."  "  There  is  not  a 
crowned  head  in  Europe  whose  talents  or  merits  would  entitle  him  to  be  elected  a 
vestryman  by  the  people  of  any  parish  in  America."  Later  n  life  he  was  inclined  to 
concede  that  under  certain  conditions  a  monarchy  might  really  be  the  most  desirable 
form  of  government.  Merriam,  "American  Political  Theories,"  pp.  153-154. 
For  further  literature  on  the  merits  and  demerits  of  monarchy  as  a  form  of  govern- 
ment, see  Treitschke,  "Politik,"  vol.  II,  sec.  15;  Bluntschli,  "Po'itik,"  bk.  VII; 
De  Parieu,  "  Principes,"  etc.,  ch.  2;  Paley,  "Political  and  Moral  Philosophy,"  bk. 
IV,  ch.  6;  Wood,  "Government  of  the  State,"  pp.  126-133;  Pradier-Fodere, 
''Principes  generau.x  de  Droit  de  Politique  et  de  Legislation,"  p.  243;  Roscher, 
'Politik,"  pp.  27-32;  Montesquieu,  "Esprit  des  Lois,"  bk,  V,  ch.  11. 


ARISTOCRATIC   GOVERNMENT  2H 

natural  and  artificial  aristocracies ;  etc/    Manifestly  they  do 
not  all  possess  the  same  virtues  or  the  same  vices,  nor  the 
same  elements  of  strength  or  of  weakness.     Whatever  may 
be  the  method  or  basis  of  classification  or  the  form  which 
aristocracy  may  take,  the  general  political  principle  is  the 
same,  namely,  that  aristocratic  government  is  government 
by  a  comparatively  small  portion  of  the  population.     If  as  a 
form  of  government  it  meant  what  the  etymological  deriva- 
tion of  the  word  implies,  it  would,  as  De  Parieu  remarks, 
undoubtedly  be  the  most  perfect  as  well  as  the  most  widely 
prevalent  kind  of  government  in  the  world. ^     Interpreted 
in  the  sense  of  the  best,  it  is  the  government  par  excellence, 
the  only  government   in   fact  which  can   be  defended  on 
sound    and    rational   principles.      It   ought  to  be   readily 
granted  by  all  that  only  the  good  should  govern ;  but,  as 
Seeley  observes,  if   "good"   is  only  a  euphemistic  name, 
meaning   simply  a   quality   possessed  by  the  wealthy  or 
well-born,    then    aristocracy  is   only  a  euphemistic   name 
for  oligarchy,  which  is  itself  a   perverted    or    "diseased" 
form  of  aristocracy.^     The  Greek  notion  of  aristocracy  was 
that  of  government  by  the  "best,"  not  necessarily  by  the 
wealthy  or  powerful.      Originally  it  was  one  of  the  most  should 
respected,  as  it  was  one  of  the  most  widely  distributed,  of  confused 
all  forms  of  political  organization ;  but  in  recent  years  the  with  on 
name  has  come  to  have  an  unsavory  if  not  a  disreputable  ^^^'^  ^ 
ring  about  it.^     The  ancient  writers  like  Aristotle,  as  has 
been    said,    carefully    distinguished    between    aristocracy, 
which   they  defined    as  government  by    the    "best,"    and 
oligarchy,   which     they    described   as    government    by    a 
wealthy  minority  in  their  own  interest.'^     But  with  modern 

*  Bluntschli,  "Allgemeine  Staatslehre,"  bk.  VI,  ch.  19;  Rousseau,  "Contrat 
social,"  bk.  Ill,  ch.  5  ;  Jefferson's  Works,  vol.  IX,  p.  425. 

^  "Principes  de  la  Science  politique,"  p.  56. 

^  "Introduction  to  Political  Science,"  pp.  323,  331.  See  also  Lewis,  "  Use  and 
Abuse  of  Political  Terms,"  pp.  72-74. 

''  Compare  Sidgwick,  "Elements  of  Politics,"  p.  608. 

•Aristotle,  "Politics,"  IV,  7;  IV,  14;  V,  6. 


212 


FORMS    OF    GOVERNMENT 


Aris- 
tocracy 
empha- 
sizes Qual- 
ity;  it  is 
Conserva- 
tive 


notions  concerning  government  by  the  few  the  distinction 
has  largely  disappeared,  so  that  aristocracy  has  come  to 
possess  the  same  disagreeable  meaning  which  the  ancients 
associated  with  oligarchy.  In  short,  the  two,  as  forms  of 
government,  are  now  regarded  as  substantially  the  same. 

One  of  the  distinguishing  characteristics  of  aristocracy 
is  that  it  emphasizes  quality  rather  than  quantity,  charac- 
ter rather  than  mere  numbers.^  \lt  assumes  that  some  are 
better  fitted  to  govern  than  others,  attaches  great  weight 
to  experience  and  training  as  political  virtues,  and  seeks 
to  reward  special  talent  and  attract  it  into  the  public 
service.  It  is  preeminently  conservative  government;  it 
honors  authority,  especially  when  it  has  had  the  sanction 
of  long  acquiescence,  and  has  great  reverence  for  long- 
established  custom  and  tradition.  It  strikes  its  roots  deep 
in  the  past  and  distrusts  innovation,  especially  when  it  would 
lay  violent  hands  upon  institutions  which  have  become  ven- 
erable with  age.  Where  it  is  associated  with  monarchy  and 
democracy,  it  acts  as  a  tempering  and  restraining  element. 
It  curbs  the  passions  of  democracy  and  holds  in  check  the 
absolute  tendencies  of  monarchy.^  In  this  sense  it  is,  said 
Lord  Brougham,  a  necessary  part  of  a  governmental  system, 
since  "  nothing  else  can  protect  liberty  from  an  arbitrary 
sovereign  or  from  the  more  insupportable  tyranny  of  the 
irresponsible  multitude."'  The  very  soul  of  it,  said 
Montesquieu,  is  moderation  founded  on  virtue.  It  pos- 
sesses an  inherent  vigor,  he  declared,  unknown  to  democ- 
racy.*    Naturally  jealous  of   its   exclusive   privileges  and 


*  Compare  Bluntschli  "Politik,"  p.  282. 

'  Compare  De  Parieu,  "  Principes  de  la  Science  politique,"  pp.  59-60. 
^  "Works,"  vol.  XI,  p.  20.     That  aristocracy  is  not  incompatible  with  liberty 
Milton  asserted  in  "  Paradise  Lost " : 

"  If  not  equal  all,  yet  free. 
Equally  free ;  for  orders  and  degrees 
Jar  not  with  liberty,  but  well  consist."  —  Bk.  V,  791-793" 


*  "Esprit  des  Lois,"  bk.  Ill,  ch.  4. 


ARISTOCRATIC    GOVERNMENT  213 

fearful  of  its  own  security,  it  has  every  reason  for  refraining 
from  an  unwise  and  immoderate  use  of  its  power.  Thus 
it  avoids  rash  political  experiments  and  advances  only  by 
cautious  and  measured  step.^  If  the  principle  of  selection 
were  always  that  of  genuine  merit,  it  is  difficult  to  see 
what  could  be  said  against  aristocratic  government  qua 
government.  Considered  from  the  standpoint  of  the  qual- 
ity of  the  government  itself,  without  reference  to  its  effect 
upon  the  masses  who  are  permanently  excluded  from  par- 
ticipation in  political  affairs,  government  by  the  most  ca- 
pable few  undoubtedly  possesses  elements  of  strength  and 
efficiency  which  are  conspicuously  absent  from  a  system  in 
which  the  untrained  and  ignorant  masses  hold  the  reins  of 
power,  John  Stuart  Mill  has  well  remarked  that  "the  gov- 
ernments which  have  been  remarkable  in  history  for  sus- 
tained mental  ability  and  vigor  in  the  conduct  of  affairs 
have  generally  been  aristocracies,"  though,  as  he  adds, 
they  have  been  "without  exception  aristocracies  of  public 
functionaries  —  that  is,  of  men  who  have  made  public 
business  an  active  profession  and  the  principal  occupa- 
tion of  their  lives."  ^ 

But  the  weakness  of  aristocracy  as  a  practical  system  of  Weakness 
government  lies  in  the  difficulty  of  finding  any  safe  and  cratic^*°' 
just  principle  of  selection  by  which  the  fittest,  politically  Govem- 
speaking,  may  be  differentiated  from  the  unfit  and,  when 
this  is  done,  of  providing  any  adequate  security  against 

*  The  redeeming  qualities  of  this  form  of  government,  remarks  Lord  Brougham, 
are  its  firmness  of  purpose,  resistance  of  violent  change,  discontinuance  of  warlike 
policy,  and  encouragement  of  genius.  Works,  vol.  XI,  p.  3.  De  Tocqueville,  in 
commenting  on  the  merits  of  aristocracy,  says:  "It  is  not  a  question  of  easy  solution 
whether  the  aristocracy  or  the  democracy  is  most  fit  to  govern  a  country.  But  it  is 
certain  that  democracy  annoys  one  part  of  the  country  and  that  aristocracy  oppresses 
another  part.  When  the  question  is  reduced  to  the  simple  expression  of  the  struggle 
between  poverty  and  wealth,  the  tendency  of  each  side  of  the  dispute  becomes  per- 
fectly evident  without  further  controversy."  "Democracy  in  America"  (trans,  by 
Reeves),  vol.  I,  p.  203.  For  a  further  view  of  De  Tocqueville  on  the  merits  of  aris- 
tocracy, see  iWd.,  p.  258. 

""Representative  Government,"  p.  107. 


214 


FORMS    OF    GOVERNMENT 


Views  of 
Seeley 


Lecky  on 
Aristo- 
cratic 
Govern- 
ment 


the  temptation  of  the  former  class  to  exercise  their  powers 
in  their  own  interest.  It  is  now  generally  agreed  that  the 
most  capable  and  fit  of  the  population  cannot  be  selected 
by  conferring  the  power  to  govern  upon  certain  families 
and  their  descendants,  for  political  capacity  and  probity 
are  qualities  not  always  transmitted  from  father  to  son. 
There  are  still,  however,  some  highly  respected  writers 
who  defend  under  certain  limitations  aristocracies  con- 
stituted on  the  hereditary  principle.  Sir  Henry  Maine, 
for  example,  has  expressed  the  opinion  that  the  chances 
of  getting  capable  persons  into  the  service  of  the  state  are 
as  great  under  the  principle  of  hereditary  succession  as 
under  a  system  of  popular  election.' 

"A  man,"  said  Professor  Seeley,  "who  is  the  son  of  a 
statesman,  who  has  grown  up  in  the  house  of  a  statesman, 
may  be  presumed  to  have  learnt  something,  if  only  some 
familiarity  with  public  questions,  some  knowledge  of 
forms  of  routine  which  others  are  likely  to  want;  and 
there  is  a  fair  probability  that  he  may  have  acquired 
more  and  a  certain  possibility  that,  as  the  younger  Pitt, 
he  may  have  acquired  very  much  and  also  inherited  very 
much."  2 

The  late  W.  E.  H.  Lecky,  in  a  defense  of  the  English 
aristocracy,  commenting  on  a  saying  of  Benjamin  Franklin 
that  there  was  no  more  reason  for  hereditary  legislators 
than  for  hereditary  professors  of  mathematics,  and  that  it 
was  absurd  to  expect  that  the  eldest  son  of  a  single  family 
should  always  display  exceptional  or  even  average  capacity. 


'Thus  he  says  ("  Popular  Government,"  p.  i88) :  "Under  all  systems  of  gov- 
ernment, under  monarchy,  aristocracy,  and  democracy  alike,  it  is  a  mere  chance 
whether  the  individual  called  to  the  direction  of  public  affairs  will  be  qualified 
for  the  undertaking ;  but  the  chance  of  his  competence,  so  far  from  being  less  under 
aristocracy  than  under  the  other  two  systems,  is  distinctly  greater.  If  the  qualities 
proper  for  the  ccwiduct  of  government  can  be  secured  in  a  limited  class  or  body  of 
men,  there  is  a  strong  probability  that  they  will  be  transmitted  to  the  corresponding 
class  in  the  next  generation  although  no  assertion  be  possible  as  to  individuals." 

'  "Introduction  to  Political  Science,"  lect.  VI. 


ARISTOCRATIC   GOVERNMENT  215 

remarked:  "But  it  is  not  absurd  to  expect  that  more  than 
five  hundred  families,  thrown  into  pubHc  life  for  the  most 
part  at  a  very  early  age,  animated  by  all  its  traditions 
and  ambitions,  and  placed  under  circumstances  exceed- 
ingly favorable  to  the  development  of  political  talent, 
should  produce  a  large  amount  of  governing  faculty.  .  .  . 
The  qualities  required  for  successful  political  life  are,  not 
like  poetry  or  the  higher  forms  of  philosophy,  qualities  that 
are  of  a  very  rare  and  exceptional  order.  They  are  for  the 
most  part  qualities  of  judgment,  industry,  tact,  knowledge 
of  men  and  of  affairs,  which  can  be  attained  to  a  high  degree 
of  perfection  by  men  of  no  very  extraordinary  intellectual 
powers.  .  .  .  Few  persons,  I  think,  will  dispute  the  high 
average  capacity  for  government  which  the  circumstances 
of  the  English  aristocratic  life  tend  to  produce."  ^  Of  the 
value  of  such  an  aristocracy  to  the  state  Lecky  goes  on 
to  say:  "It  is  of  no  small  importance  that  a  nation  should 
possess  a  class  of  men  who  have  a  large  stake  in  the  pros- 
perity of  the  country,  who  possess  a  great  position  inde- 
pendent of  politics,  who  represent  very  evidently  the 
traditions  and  the  continuity  of  political  life,  and  who, 
whatever  may  be  their  faults,  can  at  least  be  trusted  to  ad- 
minister affairs  with  a  complete  personal  integrity  and 
honor.  In  the  fields  of  diplomacy  and  in  those  great 
administrative  posts  which  are  so  numerous  in  an  extended 
empire,  high  rank  and  the  manners  that  commonly  ac- 
company it  are  especially  valuable,  and  their  weight  is  not 
the  least  powerfully  felt  in  dealing  with  democracies."  ^ 
But  when  all  is  said  that  can  be  said  in  favor  of  birth  as 
the  principle  of  selection,  the  fact  remains,  as  Seeley  readily 
admits  in  his  defense  of  the  system,  that  it  works  for  the 

'  "Democracy  and  Liberty,"  vol.  I,  pp.  314,  317.  For  De  Tocqueville's  view 
of  the  excellencies  and  faults  of  the  English  aristocracy,  see  his  "Democracy 
in  America,"  vol.  I,  p.  261. 

^  Ibid.,  p.  321.  Among  the  same  line  see  Paley,  "  Political  and  Moral  Philos- 
ophy," bk.  VI,  ch.  6. 


2l6 


FORMS   OF    GOVERNMENT 


Property 
not  a 
Good  Test 
of  Fitness 
for  Gov- 
ernment 


Artificial 
or"Sham" 
Aristoc- 
racies 


false  aristocracy  as  well  as  the  true  and  that  the  worse 
traits  are  transmitted  as  well  as  the  best. 

The  possession  of  property,  whether  of  land  or  personalty, 
Is  an  equally  unsatisfactory  test  of  political  capacity,  espe- 
cially if  it  be  inherited  wealth.  If  gained  by  honest  toil, 
thrift,  and  wise  management  it  is,  however,  a  sign  of  the 
possession  by  the  owner  of  qualities  which  undoubtedly 
fit  him  for  some  participation  in  public  affairs,  though  ob- 
viously there  are  many  men  equally  capable  and  worthy 
who  are  not  property  owners.  In  other  words,  property, 
like  birth,  is  not  the  only  criterion,  and  therefore  the  gov- 
erning power  cannot  wisely  be  restricted  to  either  class  or 
to  both  combined.  And  so  with  all  other  tests  which  do 
not  rest  upon  intrinsic  merit.  Yet  to  prove  that  no  just 
or  adequate  tests  can  be  found  really  proves  nothing 
against  aristocracy  itself.  The  question  of  whether  there 
ought  to  be  a  test  by  which  the  fitness  of  men  to  exercise 
a  share  in  the  government,  as  Seeley  observes,  is  not  an- 
swered by  showing  that  wealth  is  not  such  a  test  or  that 
birth  is  not  such  a  test.^  The  trouble  is  not  with  the  aris- 
tocracy, but  with  the  test  upon  which  it   is   constituted. 

Rousseau  and  Jefferson,  both  champions  of  democracy 
in  their  respective  countries,  pointed  out  the  distinction 
between  what  they  called  natural  aristocracies  and  arti- 
ficial or  "sham"  aristocracies.  Rousseau  considered  elect- 
ive aristocracies  to  be  the  only  natural  ones,  and  these  he 
pronounced  the  "best  of  all  governments,"  since  they 
insured  "probity,  enlightenment,  experience,  and  all  the 
other  guarantees  that  the  government  would  be  wisely 
administered."     In  a  word,  he  said,   the  best  and    most 


*  The  oppression  which  heis  come  from  tyrannous  minorities  in  the  past  has,  as 
Seeley  remarks,  come  not  from  aristocracies,  but  from  corrupt  oligarchies.  Much  of 
the  objection  that  has  been  directed  against  aristocracy,  therefore,  would  be  more 
defensible  if  it  were  leveled  against  oligarchy.  If  the  right  test  could  be  devised  by 
which  oligarchy  could  be  avoided,  we  would  have  only  pure  and  true  aristocracies, 
and  they  would  be  hailed  with  delight  by  every  one.     Op.  cit.,  p.  347. 


ARISTOCRATIC   GOVERNMENT  217 

natural  order  is  where  the  wisest  govern  the  multitude,  if 
there  is  any  guarantee  that  the  government  will  be  con- 
ducted for  the  benefit  of  the  people  and  not  for  them- 
selves.^ Jefferson  agreed  with  Rousseau  in  declaring  all 
aristocracies  based  on  wealth  or  birth  to  be  not  "only 
useless  but  mischievous  and  dangerous"  though  he  was 
a  strong  defender  of  those  based  on  "virtue  and  talent."  ^ 
Contrary  to  the  popular  belief,  he  was  a  believer  in  aristo- 
cratic government,  when  the  aristocracy  was  of  the 
latter  kind.^  "There  is,"  he  said,  "a  natural  aristocracy 
founded  on  talent  and  virtue  which  seems  destined  to 
govern  all  societies  and  all  political  forms,  and  the  best 
government  is  that  which  provides  most  efficiently  for  the 
purity  of  the  choosing  of  these  natural  aristocracies  and  their 
introduction  into  the  government."  Artificial  aristocra- 
cies have  always  been  hated  by  the  masses  because  they  are 
constituted  on  the  theory  that  some  are  born  to  rule  and 
others  to  be  their  subjects.  All  of  them,  whether  natural 
or  artificial,  are  apt  to  be  narrow  and  exclusive,  and  are 
inclined  to  arrogance  and  excessive  conservatism  which 
at  times  retards  wholesome  progress.* 

Public  opinion  toward  aristocracies  in  recent  times  has  The  Pass- 
been  so  unfavorable  that  no  example  of  a  pure  aristocracy  Aristo-*^* 
has  survived  the  middle  of  the  nineteenth  century.     The  cratic 
ancient  aristocracy  of  Rome  gave  way  to  democracy.     The 
medieval  aristocracies  of  Germany  and  Italy  were  super- 
seded by  the  growing  power  of  the  princes,  and  the  royal 

'  "Contrat  social,"  bk.  Ill,  ch.  5.  *  Works,  vol.  IX,  p.  425. 

'  Compare  Merriam,  "American  Political  Theories,"  p.  156. 

^Compare  Bluntschli,  "Allgemeine  Staatslehre,"  bk.  VI,  ch.  19.  See  also 
Lord  Brougham,  "The  British  Constitution,"  Works,  vol.  XI,  p.  3,  for  a  discussion 
of  the  evils  of  the  aristocratic  form.  "  There  never  was  an  aristocracy,"  says  Lave- 
leye,  "  more  devoted  to  liberty  or  more  fitted  to  govern  than  that  of  England,  yet  it 
opposed  every  extension  of  the  suflFrage  and  often  in  legislation  it  sacrificed  the  inter- 
ests of  the  people  to  its  own  privileges."  "  Le  Gouvernement  dans  la  Ddmocratie," 
vol.  I,  pp.  273-274.  For  a  full  discussion  of  aristocracy  as  a  form  of  government 
see  De  Parieu,  "  Principes  de  la  Science  politique,"  ch.  3. 


2i8  FORMS   OF    GOVERNMENT 

governments  which  they  estabhshed  were  In  time  over- 
whelmed by  the  rise  of  the  democracy.  In  modern  times 
they  survive  only  in  part,  being  associated  wherever  they 
exist  with  democracy  and  monarchy.  We  are  entitled  by 
deductions  from  history,  say  Woolsey,  to  lay  down  the 
principle  that  aristocracy  is  ordinarily  capable  of  no  long 
continuance,  when  it  is  the  sole  governing  or  by  far  the 
strongest  power  in  the  state. ^ 

Aristocracy  is  a  very  common  form  of  government  in  the 
infancy  of  states,  when  political  consciousness  manifests 
itself  only  in  the  minds  of  a  few.  As  this  consciousness 
spreads,  the  state  becomes  democratic,  and  as  a  matter  of 
fact  most  of  the  aristocracies  of  history  have  fallen  before 
the  advance  of  democracy.^  Aristocracy  proper  is  a  princi- 
ple which  all  states  have  admitted  and  to  some  extent  fol- 
lowed in  practice.^  In  all  ancient  states,  democracies  and 
aristocracies  alike,  large  classes  of  persons  were  excluded 
from  participation  in  public  affairs.  The  laboring  classes 
everywhere  have  been  enfranchised  only  In  comparatively 
recent  years.  In  England,  at  the  beginning  of  the  eigh- 
teenth century  one  of  the  freest  of  states,  all  the  lower 
classes  and  a  large  proportion  of  the  middle  classes  were 
excluded  from  all  share  in  the  government  of  the  country. 
And  the  same  was  true  to  a  less  degree  in  America  for  a 
considerable  period  after  the  colonies  became  independent. 
Modern  democracies  no  longer  exclude  the  laboring  classes, 
yet  practically  all  of  them  apply  standards  of  fitness, 
even  if  they  sometimes  apply  them  indirectly  and  in  a 
manner  unconsciously.     In  this  sense  the  governments  of 

'  "Political  Science,"  vol.  II,  p.  i. 

^  "  Except  in  ancient  Sparta  and  modern  Venice,"  says  Lord  Brougham,  "  there 
is  no  example  of  an  aristocracy  which  sooner  or  later  was  not  transferred  into  a 
democracy  or  a  monarchy."     "Political  Philosophy,"  vol.  II,  p.  197. 

'  "  Almost  all  the  nations,"  observes  De  Tocqueville,  "  which  have  exercised  a 
powerful  influence  upon  the  destinies  of  the  world  by  conceiving,  following  up,  and 
executing  vast  designs  —  from  Rome  to  England  —  have  been  governed  by  aristo' 
cratic  institutions."     "  Democracy  in  America,"  vol.  I,  p.  256. 


DEMOCRATIC    OR   POPULAR    GOVERNMENT  219 

most  states  are  aristocratic.     Modern  government  is  such  ah  gov- 

a    difficult    art   and    requires  so    much    skill    and    special  ^ri™^"*^ 

knowledge  that  the  whole  number  of  persons  really  qual-  tocratic 

ified    is   very   small.      In    short,   it   must    from    the    very  Extent 
nature  of  the  case  be  largely  government  by  specialists. 

III.       DEMOCRATIC    OR    POPULAR    GOVERNMENT 

Democratic    or    popular   government    is,    as    has     been  The 
pointed  out,   that  form  in  the  constitution  and  adminis-  ofDemoc- 
tration  of  which  the  great  mass  of  the  adult  population  "^^^y 
have  a  direct  or  an  indirect  share.     The  democratic  gov- 
ernments of  to-day  are  founded  on  the  theory  that  any 
honest  and  self-supporting  male  citizen  is,  on  the  average, 
as  well  qualified  as  another  for  participating  in  the  busi- 
ness of  government.*     They  rest,  said  Jefferson,  on  con-  • 
fidence  in  the  self-governing  capacity  of  the  great  mass  of 
the  people,  and  in  the  ability  of  the  average  man,  or  of  av- 
erage men,  to  select  rulers  who  will  govern  in  the  interest 
of  society.^ 

But  it  must  not  be  overlooked  that,  however  democratic 
the  basis  of  government  may  be,  the  actual  business  of 
governing  must  be  restricted  to  a  comparatively  small 
number  of  persons  —  that  is,  it  must  be  aristocratic. 
"The  whole  people  cannot  operate  the  government  any 
more  than  the  whole  of  twenty  people  in  an  omnibus  can 
drive  the  horses.  Some  one  must  drive  as  some  one  must 
govern." 

The  chief  merits  of  popular  government  consist  in  its  Merits  of 
beneficial  effects,  first,  on  the  character  of  the  public  service  oovem- 


*  Sidgwick  ("  Elements  of  Politics,"  p.  610)  rejects  the  correctness  of  this  assump- 
tion and  maintains  also  with  obvious  truth  that  the  doctrine  of  the  consent  of  the  gov- 
erned must  be  taken  with  qualifications.  See  also  Seeley  {op.  cit.,  p.  327),  who  asserts 
that  all  democracies  as  a  matter  of  fact  apply  standards  of  fitness  and  that  those  of  a 
representative  type  are  essentially  aristocratic.  "I  do  not  know,"  he  says,  "in  what 
part  of  history  you  could  find  a  state  founded  on  the  principle  that  one  man  is  as  good 
as  another." 

'  Quoted  by  Merriam,  "American  Political  Theories,"  p.  163. 


ment 


220  FORMS    OF    GOVERNMENT 

itself;  and  second,  upon  the  citizens  who  share  in  its  con- 
trol and  administration.  Under  the  first  head  it  is  claimed 
for  popular  government  that  it  is  the  only  form  which 
responds  readily  to  the  needs  and  desires  of  the  people  for 
whom  it  is  instituted  —  is,  in  short,  the  only  form  in  which 
responsibility  to  the  governed  can  be  effectively  enforced. 
Always  subject  to  popular  control  and  immediately  re- 
sponsible to  the  electorate,  it  is  largely  free  from  the 
temptation  to  govern  in  its  own  interest  or  that  of  a  class. 
Responsibility  in  any  form  of  government  is  the  soul  of 
efficiency,  and  governments  organized  so  as  to  secure  in 
an  effective  manner  the  one  are  likely  to  possess  the  prin- 
cipal elements  of  the  other. 
Mm  on  By  no  one  has  the  strength  of  democratic  government 

^nutive  ^^  it^  representative  form  been  so  ably  set  forth  as  by 
Democ-  John  Stuart  Mill,  who  defined  it  as  that  form  in  which 
"the  whole  people,  or  some  numerous  portion  of  them,  ex- 
ercise the  governing  power  through  deputies  periodically 
elected  by  themselves."  There  is  no  difficulty  in  show- 
ing, he  asserts,  that  the  ideally  best  form  of  government 
is  that  in  which  the  supreme  controlling  power  in  the  last 
resort  is  vested  in  the  entire  aggregate  of  the  community, 
every  citizen  not  only  having  a  voice  in  the  exercise  of 
that  ultimate  sovereignty,  but  being  at  least  occasionally 
called  on  to  take  an  actual  part  in  the  government,  by  the 
personal  discharge  of  some  public  function,  local  or  general.^ 
The  only  government,  he  continues,  which  can  fully  sat- 
isfy the  exigencies  of  the  social  state  is  one  in  which  the 
whole  people  participate,  and  the  degree  of  participation 
should  everywhere  be  as  great  as  the  general  degree  of 
improvement  of  the  community  will  allow,  and  ultimately 
all  should  be  admitted  to  a  share  in  the  sovereign  power  of 
the  state.^  So  far  as  the  welfare  of  the  community  is  con- 
cerned, the  superiority  of  popular  government,  Mill  goes 
on  to  say,  rests  upon  two  principles  of  as  universal  truth 

'  "Representative  Government,"  p.  51.  '  Ihid.,  p.  66. 


DEMOCRATIC   OR   POPULAR    GOVERNMENT  221 

and  applicability  as  any  general  proposition  which  can  be 
laid  down  respecting  human  affairs.  The  first  is  that 
the  rights  and  interests  of  the  individual  can  only  be  safe- 
guarded when  he  is  able  to  "stand  up"  for  them  himself; 
the  second  is  that  the  general  prosperity  attains  a  higher 
degree  and  is  more  widely  diffused  in  proportion  to  the 
arnount  and  variety  of  the  personal  energies  enlisted  in 
promoting  it.^ 

But  the  greatest  glory  of  democratic  government  in  the  influences 
opinion  of  its  votaries  does  not  flow  so  much  from  its  own  cratic™°' 
inherent  excellence  as  a  political  contrivance,  as  from  its  Govern- 
influence  in  elevating  the  masses  of  the  people,  developing 
their  faculties,  stimulating  interest  among  them  in  public 
affairs,  and  strengthening  their  patriotism  by  allowing 
them  a  share  in  its  administration.^  Democracy  refuses 
to  concede  that  some  are  born  to  rule  and  others  to  obey, 
and  that  some  should  be  citizens  and  others  subjects.  It 
recognizes  no  privileged  classes,  but  puts  all  on  a  footing  of 
political  equality.  "  No  man  is  free  in  the  political  accep- 
tation of  the  word,"  says  Laveleye,  **  if  he  does  not  have  some 
share  in  the  government  of  his  country,  and  he  who  is  gov- 
erned, not  by  functionaries  whom  he  has  helped  to  choose, 
but  by  authorities  constituted  without  his  consent,  is  a 
subject,  not  a  citizen."  ^  For  a  government  in  which  the 
masses  have  no  share  they  naturally  show  little  readiness 
to  make  sacrifices.  Democracy  strengthens  the  love  of 
country  because  the  citizens  feel  that  the  government  is 
their  own  and  that  magistrates  are  their  servants  rather 
than  their  masters.  The  French  people,  to  quote  Lave- 
leye again,  never  began  to  love  France  until  after  the  Revo- 

*  Ibid.,  p.  52. 

'  Compare  Bluntschli,  "  Allgemeine  Staatslehre,"  bk.  VI,  ch.  21 ;  also  his  "Poli- 
tik,"  bk.  VI,  ch.  2;  also  Pradier-Foderd,  "Principes  g^neraux  de  Droit  de  Poli- 
tique," etc.,  p.  240. 

'  "Le  Gouverneraent  dans  la  Democratie,"  vol.  I,  p.  273.  See  also  Vacherot, 
"La  Democratic,"  ch.  i,  for  an  argument  that  liberty  can  exist  only  under  the 
democratic  form;  also  Prius,  "Esprit  du  Gouvernement  democratique,"  ch.  i. 


222 


FORMS   OF   GOVERNMENT 


Reaction 
upon  the 
Quality  of 
the  Gov- 
ernment 


Elements 
of  Weak- 
ness 


lution,  when  they  were  admitted  to  a  share  in  its  govern- 
ment, since  which  time  they  have  adored  it/  Popular 
governments,  resting  as  they  do  on  the  consent  of  the 
governed  and  upon  the  principle  of  equality,  are  more  im- 
mune from  revolutionary  disturbances  than  those  in  which 
the  people  have  no  right  of  participation.  De  Tocque- 
ville  has  justly  remarked  that  almost  all  revolutions  which 
have  changed  the  face  of  the  world  have  had  for  their 
purpose  the  destruction  of  inequality. 

The  same  author,  in  his  study  of  democracy  in  America, 
dwelt  repeatedly  upon  the  interest  which  the  American 
people  take  in  public  affairs,  their  high  state  of  intelligence 
in  regard  to  political  matters,  and  their  natural  patriotism.^ 
He  pointed  out  that  one  of  the  great  advantages  of  a 
democracy  is  that  it  serves  as  a  sort  of  training  school  for 
citizenship.  Mill  likewise  laid  great  stress  upon  the  in- 
fluence of  democracy  in  elevating  the  character  and  intel- 
ligence of  the  masses.  The  "most  important  point  of 
excellence,"  he  said,  "which  any  form  of  government  can 
possess  i^  to  promote  the  virtue  and  intelligence  of  the 
people  themselves,  and  the  first  consideration  in  judging 
of  the  merits  of  a  particular  form  of  government  is  how 
far  they  tend  to  foster  intellectual  and  moral  qualities 
in  the  citizens."  ^  The  government  which  does  this  best, 
he  continues,  is  likely  to  be  the  best  in  all  other  respects. 
Government  is  thus  an  agency  of  education  as  well  as  an 
organization  for  managing  the  collective  affairs  of  the 
community. 

The  faults  and  weaknesses  of  democracy  as  a  form  of 
government  have  been  emphasized  by  many  writers  in  the 
past,  and  have  more  often  been  exaggerated  than  im- 
partially stated.     First  of  all,  it  is  said  that  democracy 


'  "Le  Gouvernement  dans  la  Democratic,"  vol.  I,  p.  274. 

*  See  especially,  vol.  I,  pp.  94,  97,  259,  263. 

*  "  Representative  Government,"  p.  29.      For  further  discussion  of  the  virtues  of 
democratic  government,  see  Benoist,  "  Sophismes  politiques  de  ce  Temps,"  ch.  3. 


DEMOCRATIC    OR   POPULAR   GOVERNMENT  223 

emphasizes  quantity  rather  than  quality,  in  that  it  does 
not  give  proper  consideration  to  worth  and  special  fitness, 
qualities  that  count  for  so  much  in  other  fields  of  human 
activity.  It  rests  on  the  false  principle  that  one  man  is 
as  capable  of  governing  as  another,  in  short,  that  all  men 
are  specialists  when  it  comes  to  the  business  of  govern- 
ment. Yet  government  really  done  well,  as  the  late  Mr. 
Justice  James  Fitzjames  Stephen  aptly  remarked,  requires 
an  immense  amount  of  special  knowledge  and  the  steady, 
restrained,  and  calm  exertion  of  a  great  variety  of  the 
highest  talents  which  are  to  be  found. ^  The  results  of 
ignorance  and  incapacity  can  no  more  be  avoided  in  the 
difficult  art  of  government  than  in  private  business;  they 
are  as  disastrous  in  the  one  as  in  the  other.  Both  Mon- 
tesquieu and  Mill  admitted  that  democratic  government 
was  practicable  only  where  the  citizens  possessed  a  high 
amount  of  virtue  and  intelligence.  Democracy  stands 
for  short  tenures,  rotation  in  office,  honorary  as  contra- 
distinguished from  professional  service,  and  the  extension 
of  the  privilege  of  ofiiceholding  to  all  without  qualifica- 
tion —  principles  certainly  not  conducive  to  strength  and 
efficiency  in  government.^  Burke  once  criticised  democ- 
racy for  the  overconfidence  of  those  who  participate  in 
the  government  and  for  their  sense  of  irresponsibility.  If 
a  blunder  or  a  wrong  be  committed,  he  said,  the  share  of 
each  individual  in  the  responsibility  or  infamy  is  infini- 
tesimal. Each  man's  approbation  of  his  own  acts  has  to 
him  the  appearance  of  a  public  judgment  in  his  favor. 
"A  perfect  democracy,"  he  affirmed,  "is  the  most  shame- 
less thing  in  the  world,  and  as  it  is  the  most  shameless  it  is 
also  the  most   fearless."^     Some  writers  have  attempted 

'  "  Liberty,  Fraternity,  and  Equality,"  p.  245. 

^  Cf.  Pradier-Fodere,"PrincipesgenerauxdeDroitdePolitique,"etc.,pp.  240-241. 

'  "  Reflections  on  the  French  Revolution  "  (Clarendon  ed.,  p.  no).  See  also  his 
Collected  Works,  vol.  IV,  p. 227.  But  he  obviously  meant  a  pure,  not  a  representa- 
tive democracy. 


224 


FORMS   OF    GOVERNMENT 


Maine's 
Criticism 
of  Democ- 
racy 


to  show  that  democratic  societies  are  not  favorable  to 
art,  science,  and  culture  because  their  governments  do 
not  encourage  such  things  either  by  direct  aid  or  through 
the  maintenance  of  conditions  under  which  they  naturally 
flourish/ 

Two  of  the  most  vigorous  criticisms  of  democracy  to  be 
found  in  English  literature  are  those  of  Sir  Henry  Maine, 
in  his  work  on  "Popular  Government,"  and  Professor  W. 
E.  H.  Lecky,  In  his  "Democracy  and  Liberty."  Maine, 
after  a  review  of  the  history  of  popular  government,  con- 
cluded that  "it  affords  little  support  for  the  assumption 
that  it  has  an  Indefinitely  long  future  before  it."  Expe- 
rience, he  asserted,  rather  tends  to  show  that  it  is  a  form 
of  government  characterized  by  "great  fragility,"  and 
that  since  its  appearance  in  the  world  "all  forms  of  gov- 
ernment have  become  more  insecure  than  they  were  be- 
fore." ^  "  Popular  governments,"  he  declared,  "  have  been 
repeatedly  overturned  by  mobs  and  armies  in  combina- 
tion; of  all  governments  they  seem  least  likely  to  cope 
successfully  with  the  greatest  of  all  irreconcilables,  the 
nationalists;  they  imply  a  breaking  up  of  pohtical  power 
into  morsels  and  the  giving  to  each  person  an  infinltesimally 
small  portion;  they  rest  upon  universal  suffrage,  which  is 
the  natural  basis  of  tyranny;  they  are  unfavorable  to 
Intellectual  progress  and  the  advance  of  scientific  truth; 
they  lack  stability;  and  they  are  governments  by  the 
ignorant  and  unintelligent."  ^     "Of  all  the  forms  of  gov- 

*  See,  for  example,  Bluntschli,  "  Allgemeine  Staatslehre,"  bk.  VI,  ch.  23;  also  his 
"Politik,"  bk.  VI,  ch.  2.  Bluntschli,  however,  thinks  that  democracies  are  more 
favorable  than  other  forms  of  government  to  public  education,  charity,  etc.  The 
subject  is  discussed  by  De  Tocqueville  in  his  "Democracy  in  America,"  vol.  II, 
bk.  I,  chs.  9-12.  See  especially  pp.  32,  35,  40,  42,  51,  52,  80,  of  the  English  trans- 
lation by  Reeves.  See  also  Maine,  "Popular  Government,"  ch.  i;  and  Laveleye, 
"Le  Gouvernement  dans  la  D6mocratie,"  bk.  VI,  ch.  7. 

'"Popular  Government,"  p.  20. 

*  The  signs  of  the  times,  says  Maine,  are  not  at  all  of  favorable  augury  for  the 
future  direction  of  great  multitudes  by  statesmen  wiser  than  themselves.  The 
leaders  may  be  as  wise  and  able  as  ever,  but  they  are  manifestly  listening  nervously 


DEMOCRATIC   OR   POPULAR   GOVERNMENT 


225 


ernment,  democracy,"  he  declared,  "is  by  far  the  most 
difficult.  Little  as  the  governing  multitude  is  conscious  of 
this  difficulty,  prone  as  the  masses  are  to  aggravate  it  by 
their  avidity  for  taking  more  and  more  powers  into  their 
direct  management,  it  is  a  fact  which  experience  has  placed 
beyond  all  dispute.  It  is  the  difficulty  of  democratic  gov- 
ernment that  mainly  accounts  for  its  ephemeral  duration,"  ^ 

The  inherent  difficulties  of  democratic  government,  he  No  Con- 
goes  on  to  say,  are  so  great  and  manifold  that  in  large  j^gt'ween 
complex  modern  societies  it  could  neither  last  nor  work  if  Democ- 
it  were   not  aided   by   certain    forces  which   are   not  ex-  Liberty 
clusively  associated  with  it,  but  of  which  it  greatly  stimu- 
lates the  energy.     The  prejudices  of  the  people  are   far 
stronger  than  those  of  the  privileged  classes;    they  are  far 
more   vulgar  and   they  are   far   more  dangerous   because 
their  opinions  are  apt  to  run  counter  to  scientific  conclu- 
sions.^    Maine  denies    that  there  is  any  real   connection 
between  democracy  and   liberty,  and   asserts  that  in  case 
there  is  and  the  choice  has  to  be  made  between  them,  it 
is  better  to   remain   a  nation   capable  of   displaying   the 
virtues  of  a  nation  than  even  to  be  free.^     "  By  a  wise  con- 

at  one  end  of  a  speaking  tube  which  receives  at  the  other  end  the  suggestions  of  a 
lower  intelligence.     Ibid.,  p.  38. 

'  Cf.  Pradier-Fodere  ("Principes  gendraux  de  Droit  de  Politique,"  etc.,  p.  240), 
who,  while  pronouncing  democratic  government  to  be  the  "most  rational  in  prin- 
ciple," declares  that  it  is  the  "most  dif&cult  to  apply."  Cf.  also  Duguit,  "Droit 
constitutionnel,"  p.  3S6. 

-  Ibid.,  p.  67.  Compare  also  Hyslop  in  his  "  Democracy  "  (p.  35),  who  maintains 
that  "  a  small  country,  with  a  scanty  population,  few  resources  and  industries,  and 
similar  social  sentiments,  may  go  on  without  much  difficulty  under  democratic  in- 
stitutions. But  a  vast  territory  with  untold  material  wealth  waiting  for  labor,  a 
growing  population  and  with  it  an  increase  in  the  severity  of  the  struggle  for  exist- 
ence, and  the  great  diversity  of  moral,  economic,  political,  and  social  sentiments, 
must  call  for  government  that  corresponds  to  this  complexity." 

^  Ibid.,  p.  63.  Maine  expresses  the  opinion  that  the  government  of  a  benevolent 
despot  is  preferable  to  that  of  a  democracy.  "  There  is  no  doubt,"  he  says,  "  that  the 
Roman  emperor  cared  more  for  the  general  good  of  the  vast  groups  of  societies 
subject  to  him  than  the  Roman  republic  had  done."  "Popular  Government," 
p.  83.  Cf.  also  Laveleye  on  "The  Good  Despot,"  op.  n't.,  bk.  V,  ch.  7. 
POL.  SCI.  —  15 


226 


FORMS   OF   GOVERNMENT 


Lecky  on 
the  Evils 
of  Democ- 
racy 


stitution,"  says  Maine,  "democracy  may  be  made  as  calm 
as  the  water  in  a  great  artificial  reservoir;  but  if  there  is  a 
weak  point  anywhere  in  its  structure,  the  mighty  force 
which  it  controls  will  burst  through  it  and  spread  destruc- 
tion far  and  near."* 

Lecky  likewise  dwells  upon  the  dangers  of  government 
by  the  "poorest,  the  most  ignorant,  the  most  incapable, 
who  are  necessarily  the  most  numerous."  ^  The  idea  of 
government  by  such  a  class  reverses,  he  declares,  all  the 
past  experience  of  mankind.  "In  every  field  of  human 
enterprise,  in  all  the  computations  of  life,  by  the  inexo- 
rable law  of  nature,  superiority  lies  with  the  few  and  not 
with  the  many,  and  success  can  be  obtained  by  placing  the 
guiding  and  controlling  power  mainly  in  their  hands." 
"  Democracy  insures  neither  better  government  nor  greater 
liberty;  indeed,  some  of  the  strangest  democratic  ten- 
dencies are  adverse  to  liberty.  On  the  contra  y,  strqng 
arguments  may  be  adduced  both  from  history  and  from 
the  nature  of  things  to  show  that  damocracy  may  often 
prove  the  direct  opposite  of  liberty."  Ancient  Rome  and 
modern  France,  for  example,  seem  to  furnish  evidence  of 
the  truth  of  Lecky's  assertion.  The  French  despotisms, 
which  had  their  foundations  on  plebiscites,  were  quite 
as  natural  forms  of  democracy  as  republics,  yet  liberty 
can  hardly  be  said  to  have  been  one  of  their  virtues.  To 
place  the  chief  power  in  the  most  ignorant  classes  is  to 
place  it  in  the  hands  of  those  who  naturally  care  least 
for  political  liberty  and  who  are  most  likely  to  follow 
with  an  absolute  devotion  some  strong  leader.  The 
upper  and  middle  classes  have  shown  the  greatest  devo- 
tion to  liberty  and  have  been  its  most  ardent  defenders, 
while  democracy    has   often   enough   sought    to  dethrone 

'  "Popular  Government,"  p.  iii. 

'  For  his  views  on  government  by  the  "unthinking  and  irresponsible  multitude," 
see  his  "Democracy  and  Liberty,"  vol.  I,  pp.  18-21,  where  the  evils  of  universal 
sufifrage  were  dwelt  upon. 


DEMOCRATIC   OR   POPULAR   GOVERNMENT  227 

It/     Speaking   of  the  United   States,   he   declares,  as   De  Democ- 
Tocqueville    did    before   him,    that   in    hardly    any    other  unfavor- 
country  does  the  best  life  and  energy  of  the  nation  flow  ^^le  to 
so  habitually  apart  from  politics,  and  is  the  best  talent  ture.  Sci- 
so  rarely  chosen  to  the  public  service.^     Likewise  he  adopts  ^°"'  ^^^ 
the   view   of    De  Tocqueville,    Laveleye,   Bluntschli,  and 
Maine  that  democracy  is  unfavorable  to  the  development 
of  the  higher  forms  of  intellectual  life,  such  as  literature, 
art,   and   science,   in  short,    that  democracy   levels  down 
quite  as  much  as  up.^     Speaking  of   the  alleged  equality  Democ- 
upon  which  the  American  democracy  rests,  Maine  declares  duces'in- 
that  "there  has  hardly  ever  been  a  community  in  which  equality 
the  weak  have  been  pushed  so  piteously  to  the  wall;    m  Equality 
which  those  who  have  succeeded  have  so  uniformly  been 
the  strong,  and   in  which,   in  so  short  a  time,   there  has 
arisen  so  great  an  inequality  of  private  fortune  and  do- 
mestic   luxury."  *     Laveleye,    in    his   work    entitled    "Le 
Gouvernement  dans  la    Deraocratie,  "  argues  similarly  to 
show  that  democracy  does  not  necessarily  produce  equality 
any  more  than  it  produces  liberty,  and  that  it  is,  besides, 
the  enemy   of   both   wealth   and    culture.     Inequality   of 
conditions  and   the  struggle  of  classes,   he  declares,  were 
responsible  for  the   fall    of    the   ancient  democracies.     If 
the  people  are   ignorant  and   incapable,  democracy  must 
inevitably  degenerate    into  anarchy  and   despotism,   and 
both  equality  and  liberty  will  be  lost.^ 

'  "Democracy  and  Liberty,"  vol.  I,  pp.  212-215.     ^^  the  subject  of  democracy 

and  universal  suffrage,  see  Prins,  "Esprit  du  Gouvernement  democratique/'ch.  3. 

^  Ibid.,  p.  94;  De  Tocqueville,  op.  cit.,  vol.  I,  ch.  13.  ^  Ibid.,  pp.  105,  108. 

*  "Popular  Government,"  p.  51.  Compare  also  Stephen  ("Liberty,  Fraternity 
and  Equality,"  p.  239),  who  remarks  that  "in  a  pure  democracy  the  ruling  men 
vdll  be  the  wire-pullers  and  their  friends ;  but  they  will  be  no  more  on  an  equality 
with  the  people  than  soldiers  or  ministers  of  state  are  on  an  equality  with  the  subjects 
of  a  monarchy.  Under  all  circumstances  the  rank  and  file  are  directed  by  leaders 
of  one  kind  or  another,  who  get  the  command  of  their  collective  force."  For  further 
discussion  of  the  defects  of  democracy  see  Jethro  Brown,  "  The  New  Democ- 
racy," ch.  2. 

*  See  especially  bk.  VI,  chs.  5,  6,  and  7.    Laveleye  argues,  very  properly,  it  would 


228  FORMS    OF    GOVERNMENT 

The  Concerning  the  future  of  democratic  government  there 

Democ-°     ^^  no  longer  any  considerable  difference  of  opinion.     The 
racy  adverse  opinions  that  used  to  be  so  commonly   expressed 

have  slowly  dwindled  in  number  and  respectability  until 
only  here  and  there  are  serious  doubts  raised,  though 
warnings  are  still  frequently  heard.  Sir  Henry  Maine, 
who  ventured  the  opinion  twenty-five  years  ago  that  the 
history  of  popular  government  did  not  warrant  the  as- 
sumption that  it  had  an  indefinite  future,  admitted  that 
the  example  of  the  United  States  had  done  much  to  raise 
the  credit  of  democratic  republics  and  to  reveal  their 
possibilities.  Lecky,  who,  like  Maine,  feared  and  dis- 
trusted democracy,  also  admitted  that  it  was  "likely  to 
dominate,  at  least  for  a  considerable  time,  in  all  civilized 
countries,"  and  that  the  only  questions  to  be  met  were 
those  relating  to  the  form  which  it  should  take  and  the 
means  by  which  its  characteristic  evils  could  be  best 
avoided.  The  most  remarkable  political  phenomenon  of 
the  latter  part  of  the  nineteenth  century,  as  Lecky  ob- 
serves, has  been  the  "cpmplete  displacement  of  the  center 
of  power  in  free  governments."  Democracy  has  advanced 
until  it  has  spread  over  the  greater  part  of  the  civilized 
world.  It  has  in  effect  wrought  a  profound  and  far-reach- 
ing revolution  throughout  Europe  and  America,  though  in 

seem,  that  education  ought  to  be  obligatory,  and  also  free  and  non-sectarian,  in  a 
democracy,  as  a  means  of  preserving  it  from  the  calamities  of  which  he  speaks  above, 
p.  328.  Lord  Brougham  (Works,  vol.  XI,  p.  4)  offers  the  following  estimate  of 
democratic  government:  "The  democratic  form  has  some  virtues  of  a  high 
order.  The  rulers  have  no  sinister  interests;  personal  ambition  has  no  scope; 
purity  is  promoted,  not  merely  in  the  conduct  of  public  men,  but  in  the  manners 
of  the  people ;  and  the  resources  of  the  state  are  husbanded  at  all  times ;  while  in 
war  they  are  fully  called  forth.  The  defects,  however,  are  equal  to  the  excellencies. 
The  supreme  power  is  placed  wholly  in  irresponsible  hands,  because  the  holders 
of  it  are  secure  from  all  personal  risk,  and  beyond  the  reach  of  censure;  and 
those  whom  they  choose  to  exercise  it  share  in  their  irresponsibility.  There  is  no 
security  for  steady  and  consistent  policy,  either  in  foreign  or  domestic  affairs;  a 
risk  of  entire  and  violent  change  attends  the  administration,  and  even  the  constitu- 
tion ;  and  the  peace  of  the  country,  as  well  abroad  as  at  home,  is  in  perpetual  and 
imminent  danger." 


DEMOCRATIC   OR   POPULAR   GOVERNMENT  229 

most  instances  it  has  been  effected  without  acts  of  violence 
or  change  in  the  external  framework  of  the  government. 
Its  continued  spread  is  inevitable  and  irresistible,  and  no 
hand  can  stay  its  advance.  For  more  than  half  a  century 
the  opinion  has  been  steadily  gaining  ground  that  the 
masses  are  as  well  qualified  for  governing  and  more  worthy 
to  be  trusted  than  any  small  minority,  however  respected 
or  highly  trained.  Democracy  represents  for  us,  as  Sidg- 
wick  aptly  remarks,  not  merely  a  depressingly  prevalent 
political  fact,  but  a  widely  and  enthusiastically  accepted 
political  ideal. ^  Lecky  is  charitable  enough  to  say  that 
the  American  democracy  is  not  a  failure,  but  he  asserts 
that  it  carries  with  it  at  least  as  much  of  warning  as  of 
encouragement.  One  thing  is  absolutely  essential  to  its  Condi- 
safe  working,  he  concludes,  namely,  a  "written  constitution,  gemiaMo 
securing  property  and  contract,  placing  difhculties  in  the  its  Suc- 

CGSS 

way  of  organic  changes,  restricting  the  power  of  majori- 
ties, and  preventing  outbursts  of  mere  temporary  discon- 
tent and  mere  casual  coalitions  from  overthrowing  the 
main  pillars  of  state."  ^  He  might  also  have  added  to  his 
list  of  essentials  an  intelligent  and  virtuous  citizenship, 
for  upon  this  strong  foundation,  more  than  upon  anything 
else,  the  future  of  democracy  throughout  the  world  de- 
pends. Happily  the  widespread  interest  in  public  educa- 
tion and  civic  honesty  offers  an  encouraging  prospect  for 
its  future. 

What  has  been  said  above  concerning  the  strength  and  Pure  or 
weakness   of  democracy   has  reference   mainly   to   repre-  Democ- 
sentative  democracy.     The  pure  or  direct  type  exists  in  racy 
too  rare  and  restricted  a  form  in  the  modern  world  and  is 
too  impracticable  to  merit  extended  consideration.     Suf- 
ficing for  the  simple  needs  of  the  few  communities  where  it 
still  survives,  it  is  wholly  unsuited  to  the  conditions  of  the 

'  "Elements  of  Politics,"  p.  608.     On  "the  present  theory  of  democracy,"  see 
Jethro  Brown,  "  The  New  Democracy,"  ch.  x. 
'  "Democracy  and  Liberty,"  vol.  I,  p.  112. 


230 


FORMS   OF    GOVERNMENT 


New 

Forms  of 
Democ- 
racy 


Advan- 
tages of 
Federal 
Govern- 
ment 


complex  states  of  to-day.  Nevertheless  recent  years  have 
seen  the  growth  of  popular  dissatisfaction  with  the  repre- 
sentative system,  and  a  demand  for  more  direct  partici- 
pation of  the  masses  in  the  government,  particularly  in 
the  legislative  function/  This  growing  self-consciousness 
of  the  masses  has  found  expression  in  a  variety  of  new  in- 
stitutional forms  of  democracy,  such  as  the  referendum, 
the  initiative,  proportional  representation,  the  recall,  etc. 
The  introduction  of  these  new  forms  of  direct  democracy 
into  the  constitution  of  many  states  bids  fair  to  work 
important  changes  in  the  character  of  the  representative 
system. 

IV.      FEDERAL   GOVERNMENT 

Federal  government,  like  all  other  forms,  has  its  elements 
of  strength  and  of  weakness,  its  advantages  and  its  disad- 
vantages. Among  the  more  conspicuous  merits  of  the 
federal  system  may  be  noted,  first  of  all,  that  it  affords  a 
means  of  uniting  into  a  powerful  state  commonwealths 
more  or  less  diverse  in  character  and  having  dissimilar  in- 
stitutions, without  extinguishing  wholly  their  separate 
existences.  It  furnishes  the  means  of  maintaining  an 
equilibrium  of  centrifugal  and  centripetal  forces  in  a  state 
of  widely  different  tendencies.  Federalism  has  been  the 
means  of  bringing  together  many  petty  states  in  the  past 
which,  but  for  this,  would  have  remained  forever  apart. 
It  has  thus  proved  a  powerful  unifying  force  where  other 
forms  of  government  have  repelled.  Again,  it  excels  all 
other  forms  of  government  in  the  effectiveness  with  which 
it  combines  the  advantages  of  national  unity  and  power 
with  those  of   local  autonomy.^     It  secures  at  the  same 

*  Cf.  Godkin  ("Unforseseen  Tendencies  of  Democracy,"  p.  144),  who  declares 
that  the  representative  system,  after  a  century  of  existence  under  a  very  extended  suf- 
frage, has  failed  to  satisfy  the  expectations  of  its  early  promoters  and  is  likely  to  make 
way  in  turn  for  the  more  direct  action  of  the  people  on  the  most  important  questions 
of  government. 

'  The  federal  system,  says  De  Tocqueville,  was  created  with  the  intention  of  com- 


FEDERAL   GOVERNMENT  231 

time  all  the  advantages  of  uniformity  in  the  regulation  of 
affairs  of  general  concern  with  those  of  diversity  in  the 
regulation  of  local  affairs.  Instead  of  concentrating  the 
power  of  the  state  in  a  single  organ  or  set  of  organs,  as 
is  the  case  in  the  unitary  state,  federalism  distributes  it 
between  a  common  central  government  and  a  number  of 
local  governments,  and  thus  prevents  the  rise  of  a  single 
despotism  absorbing  all  political  power  and  menacing  the 
liberties  of  the  people/  By  securing  the  advantages  of  self- 
government  for  the  people  in  those  affairs  which  are  pecul- 
iarly local  to  them,  it  reconciles  them  to  the  loss  of  power 
which  they  have  sustained  through  the  surrender  of  their 
control  over  other  affairs  to  the  general  government.  Fur- 
thermore, through  the  right  of  local  self-government,  the 
interest  of  the  people  in  local  affairs  is  stimulated  and  pre- 
served, they  are  educated  in  their  civic  duties,  and  this  in 
turn  reacts  upon  the  character  of  the  local  administration. 
Federalism,  observes  Bryce,  allows  experiments  in  local 
legislation  and  administration  which  could  not  safely  be 
tried  in  a  large  country  having  a  unitary  system  of  govern- 
ment. At  the  same  time  it  supplies  the  best  means  of 
developing  a  new  and  vast  country  by  allowing  the  par- 
ticular localities  to  develop  their  special  needs  in  the  way 
they  think  best.^ 

The  excellencies  of  federal  government  have  been  widely  Views  of 
and  frequently  dwelt  upon  by  political  writers  during  the  writers 
last  half  century.     John  Fiske  declared  it  to  be  the  only 
kind  of  governm.ent  which,  according  to  modern  ideas,  is 
permanently    applicable    to    a    whole    continent.^     Sidg- 

bining  the  different  advantages  which  result  from  the  greater  and  the  lesser  extent  of 
nations.     "Democracy  in  America,"  vol.  I,  p.  176. 

'  "It  is  very  probable,"  says  Montesquieu,  "that  mankind  would  have  been  at 
length  obliged  to  live  continuously  under  the  government  of  a  single  person  had  they 
not  contrived  a  kind  of  constitution  that  has  all  the  advantages  of  a  republican  to- 
gether with  the  external  forces  of  a  monarchical  government ;  I  mean  a  confederate 
republic."     "Esprit  des  Lois,"  bk.  IX,  ch.  i. 

-  "The  American  Commonwealth,"  ch.  28.     '  "American  Political  Ideas,"  p.  92. 


232 


FORMS    OF    GOVERNMENT 


Weak- 
nesses of 
Federal 
Govern- 
ment 


wick,  an  English  writer,  predicts  that  we  shall  see  an 
extension  of  it  even  in  western  Europe,  where  the  example 
of  America  will  be  followed/  The  German  writer  Brie, 
who  has  made  an  elaborate  study  of  federal  government, 
declares  that  it  represents  the  highest  realization  of  the 
state  idea ;  ^  while  Westerkamp,  whose  researches  have 
been  along  the  same  line,  dwells  upon  its  excellencies  and 
points  out  that  it  has  spread  until  it  embraces  a  portion 
of  the  globe  equal  to  three  times  the  territorial  area  of 
Europe.^ 

In  recent  years,  however,  owing  to  changed  conditions 
under  which  its  success  has  been  less  marked,  there  has 
been  an  increasing  disposition  to  dwell  upon  the  weaknesses 
as  well  as  the  virtues  of  federal  government.  These 
weaknesses  are  coming  to  be  more  apparent  as  economic  and 
industrial  conditions  of  society  become  more  complex  and 
require  uniformity  of  regulation.  As  one  writer  has  re- 
cently said:  "Federal  government  has  very  decided  limi- 
tations, serious  faults  of  structure,  unheeded  perhaps  at  the 
time  of  its  inception,  but  likely  to  break  down  under  the 
altering  strain  of  a  new  environment.  Politically  and  on 
its  external  side  it  has  proved  itself  strong,  but  economically 
and  in  its  internal  aspect  it  is  proving  itself  weak."  * 

First  of  all,  in  the  conduct  of  foreign  affairs  federal  gov- 
ernment possesses  an  inherent  weakness  not  found  in  unit- 
ary government.  The  experience  of  the  United  States  in 
particular  has  shown  that  the  individual  members  of  the 
federal  union,  by  virtue  of  their  reserved  powers  over  the 
rights  of  person  and  property,  may  embarrass  the  national 
government  in  enforcing  its  treaty  obligations  in  respect  to 
aliens  residing  in  the  United  States.     Likewise  in  the  do- 


'  "Development  of  European  Polity,"  p.  439. 
'  "Theorie  der  Staatenverbindungen,"  p.  135. 

*  "Staatenbund  und  Bundesstaat,"  p.  vi. 

*  Leacock,  "Limitations  of  Federal  Government,"  "Proceedings  of  the  Ameri- 
can Political  Science  Association,"  vol.  V,  p.  39. 


FEDERAL   GOVERNMENT  233 

main  of  internal  affairs  federal  government  has  given  evi- 
dence of  weaknesses  which  have  grown  enormously  in  recent 
years.  It  means  division  of  power  between  coordinate 
authorities  in  many  fields  of  legislation  and  administration, 
and  division  of  power  always  produces  weakness,  whatever 
other  advantages  it  may  secure.  Particularly  as  respects 
such  matters  as  commerce  and  transportation,  marriage 
and  divorce,  labor,  and  industries  which  are  national  in 
their  scope  of  operation,  federalism  usually  means  variety 
of  regulation  where  there  ought  to  be  uniformity.  It  is 
here  that  some  of  the  most  serious  faults  of  the  United 
States  federal  system  have  shown  themselves.^  In  the 
domain  of  military  affairs  federalism  is  of  course  entirely 
out  of  place,  and  usually  where  the  federal  system  of 
government  exists  the  unitary  principle  prevails  in  military 
administration  .^ 

'  Of  course  it  does  not  necessarily  follow  that  there  must  be  variety  of  legisla- 
tion under  the  federal  system  in  any  particular  domain.  That  depends  upon  the 
methods  of  distribution.  The  regulation  of  marriage  and  divorce,  for  example, 
may  be  conferred  upon  the  central  government,  as  is  the  rule  in  Germany,  instead  of 
being  left  to  the  separate  states,  in  which  case  there  will  be  uniformity.  It  is  not 
necessary,  therefore,  to  abolish  the  federal  system  in  order  to  remove  such  evils  as 
those  connected  with  want  of  uniformity  of  legislation.  That  may  be  done  by  a  re- 
distribution of  powers  by  which  the  central  government  is  given  exclusive  jurisdic- 
tion over  those  subjects  which  require  uniformity  of  legislation. 

*  Commenting  on  the  federal  system,  De  Tocqueville  says,  "It  is  one  of  the  com- 
binations most  favorable  to  the  prosperity  and  freedom  of  man.  I  envy  the  lot  of 
those  nations  which  have  been  enabled  to  adopt  it."  However,  he  expresses  doubt 
whether  such  a  government  could  maintain  a  long  or  unequal  contest  with  a  nation 
of  similar  strength  in  which  the  government  is  centralized.  "  Democracy  in  Amer- 
ica," vol.  I,  p.  183.  For  further  discussion  of  the  weakness  of  federal  government, 
see  De  Tocqueville,  ch.  8,  especially  pp.  141,  156,  173,  176,  181,  183;  also  Dicey, 
"Law  of  the  Constitution"  (second  ed.),  p.  158;  Boutmy,  "fitudes  de  Droit  con- 
stitutionnel,"  pp.  156-158;  Le  Fur  und  Posener,  "  Bundesstaat  und  Staatenbund," 
sec.  78.     Bryce  sums  up  the  "faults"  of  federal  government  as  follows: 

1.  Weakness  in  the  conduct  of  foreign  affairs. 

2.  Weakness  in  home  government,  that  is  to  say,  deficient  authority  over  the 

component  states  and  the  individual  citizens. 

3.  Liability  to  dissolution  by  the  secession  or  rebellion  of  states. 

4.  Liability  to  division  into  groups  and  factions  by  the  formation  of  separate 

combinations  of  the  component  states. 


234 


FORMS   OF    GOVERNMENT 


Future  of 
Federal 
Govern- 
ment 


Concerning  the  future  of  federal  government  there  is, 
of  course,  a  difference  of  opinion.  Some  writers  maintain 
that  it  is  only  a  transitory  form  and  will  ultimately  give 
way  to  the  unitary  form,  just  as  confederate  government 
has  nearly  everywhere  been  superseded  by  the  federal 
system.  It  was  established,  its  critics  assert,  out  of  sheer 
pressure  of  external  necessity  rather  than  from  its  own 
inherent  excellence;  and  it  marks  merely  a  transition  stage 
through  which  many  states  have  been  obliged  to  pass 
in  order  to  attain  a  more  perfect  organization/  But  this 
pressure  having  been  removed,  and  the  preliminary  stage 
having  been  passed  through,  the  principal  purposes  of 
federal  government  will  have  been  accomplished,  and  it 
will  give  way  to  a  more  efficient  system  —  one  better 
adapted  to  the  conditions  and  needs  of  the  present 
civilization. 


5.  Want  of  uniformity  among  the  states  in  legislation  and  administration. 

6.  Trouble,  expense,  and  delay  due  to  the  complexity  of  a  double  system  of  legis- 

lation and  administration.     "The  American  Commonwealth,"  ch.  28. 

*  This  is  the  opinion  of  Held,  Rivier,  Freeman,  Dicey,  Leacock,  and  others.  Lea- 
cock  asserts  that  "  in  proportion  as  economic  progress  results  in  industrial  integration 
federal  government  is  bound  to  give  way.  It  is  destined  finally  to  be  superseded  by 
some  form  of  really  national  and  centralized  government,  occupying  at  its  own  dis- 
cretion whatever  part  of  the  total  economic  and  industrial  field  it  may  see  fit  to  occupy, 
untrammeled  by  the  network  of  a  written  constitution  and  the  jugglery  of  judicial 
interpretation."  "  Limitations  of  Federal  Government,"  Proceedings  of  the  Ameri- 
can Political  Science  Association,  1908,  p.  52.  The  weakness  of  federal  govern- 
ment, observes  Dicey,  springs  from  two  different  causes :  first,  the  division  of  powers 
between  the  central  government  and  the  states ;  second,  the  distribution  of  powers 
among  the  different  branches  of  the  national  government.  The  first  is  inherent  in 
the  federal  system,  the  second  is  not.  Moreover,  a  federal  system  can  flourish  only 
among  communities  imbued  with  a  legal  spirit  and  trained  to  reverence  the  law. 
Federalism  substitutes  litigation  for  legislation,  and  no  nation  which  cannot  ac- 
quiesce in  the  finality  of  possibly  mistaken  judgments  is  fit  to  form  part  of  a  federal 
state.  "Law  of  the  Constitution,"  pp.  158,  166,  167.  For  a  contrary  view,  see 
Le  Fur  and  Posener,  op.  cit.,  p.  332,  who  assert  that  the  facts  of  history  contra- 
dict the  statement  that  the  federal  system  marks  a  mere  transitory  stage  from  the 
confederate  to  the  unitary  state ;  on  the  contrary,  in  several  instances,  notably  in 
the  cases  of  Germany,  Mexico,  and  Brazil,  unitary  states  have  adopted  the  federal 
system  because  of  its  manifest  advantages  over  unitary  government. 


THE   TEST   OF   A  GOOD   GOVERNMENT  235 

V.     THE   TEST   OF   A   GOOD   GOVERNMENT 

Some  writers  have  endeavored  to  lay  down  certain 
general  principles  concerning  the  best  form  of  government 
for  all  societies  and  all  conditions  of  men.  Others  have 
adopted  the  view  of  the  poet: 

"  For  forms  of  government  let  fools  contest, 
That  which  is  best  administered,  is  best."  * 

We  are  safe  in  saying  that  no  single  form  of  government  Adapta- 
is  adapted  to  all  conditions  and  stages  of  society.  In  de-  oovern- 
termining  what  are  the  characteristics  of  the  best  govern-  ™.®°*  *° 
ment  for  any  particular  society  we  must  take  into  consid-  stances 
eration  the  stage  of  development  which  the  society  has 
attained,  the  intelligence  and  political  capacity  of  the  people, 
their  history  and  traditions,  their  race  characteristics,  and 
a  variety  of  other  elements.  "To  attempt,"  says  John 
Stuart  Mill,  "to  say  what  kind  of  government  is  suited  for 
every  known  state  of  society  would  be  to  compose  a  treatise 
on  political  science  at  large."  ^  Monarchy  is  undoubtedly  a 
desirable  system  for  certain  purposes;  aristocracy  is  better 
adapted  to  certain  others;  while  democracy  is  still  better 
suited  to  other  societies.  Universal  suffrage  may  be  well 
suited  to  certain  stages  of  society,  while  in  others  it  would 
lead  to  a  breakdown  of  government.  Federal  government 
is  excellently  adapted  to  certain  stages  of  political  de- 
velopment, while  unitary  government  is  better  suited  to 
others.  Confederate  government  and  even  theocracies, 
as  we  have  tried  to  show,  have  their  places  in  the  develop- 
ment of  the  state.  No  single  form  of  government  is  adapted 
to  all  societies  any  more  than  a  suit  of  clothes  can  be  made  to 
fit  all  men.  The  system  best  suited  to  Sparta  was  not  the 
best  for  Athens ;  what  is  best  for  a  large  empire  is  not  neces- 
sarily the  best  for  a  state  of  small  area.     Whatwas  the  best 

'  Pope's  philosophy  was,  as  Hamilton  said,  a  "political  heresy,"  since  a  bad  govern- 
ment can  hardly  be  well  administered,  while  a  good  one  may  be  badly  adminstered. 
*  "Representative  Government,"  p.  42. 


236  FORMS   OF    GOVERNMENT 

for  England  in  the  time  of  the  Tudors  is  not  the  best  for 
England  to-day.  If  mere  security  of  life  and  property  are 
the  main  objects  to  be  attained,  then  a  very  different  kind 
of  government  will  suffice  from  that  which  is  necessary 
when  the  promotion  of  the  social  well-being  of  the  people 
is  considered  a  necessary  object.  "If,"  says  Lieber,  "the 
object  is  to  reform  and  reorganize  the  debased  and  nerve- 
less population  of  a  large  country  in  a  tropical  climate  as 
that  of  Egypt,  the  government  must  essentially  differ  from 
that  of  an  industrial  people  who,  like  the  Dutch,  must 
battle  with  the  sea."  ^  Government  is  like  a  house  which 
must  be  adapted  in  construction  to  its  peculiar  purposes 
and  needs.  The  most  that  can  be  done  is  to  lay  down  a 
few  general  principles,  and  these  will  be  determined  by  the 
point  of  view  or  prejudices  of  the  writer.  Alexander 
Hamilton  declared  that  the  "true  test  of  a  good  govern- 
ment" was  its  "aptitude  and  tendency  to  produce  a  good 
administration."  ^  John  Stuart  Mill  said  "the  first  element 
Mill's  of  a  good  government"  was  the  "promotion  of  the  virtue 
and  intelligence  of  the  people."  The  first  question  to  be 
considered,  he  said,  was  "how  far  does  the  government 
tend  to  foster  the  moral  and  intellectual  qualities  of  the 
citizens?"  The  government  which  does  this  best,  he 
maintains.  Is  likely  to  be  the  best  in  other  respects.^  The 
main  criterion  of  a  good  government,  in  other  words,  is 
the  degree  to  which  it  tends  to  increase  "the  sum  of  good 
qualities"  in  the  governed,  collectively  and  individually, 
rather  than  the  efficiency  of  the  government  itself  as  an 
administrative  body. 

»  "  Political  Ethics,"  vol.  I,  p.  313.  *  "  The  Federalist,"  No.  66. 

^  See  his  "  Representative  Government,"  ch.  2. 


Test 


CHAPTER   Vin 
SOVEREIGNTY 

Suggested  Readings:  Austin,  "Jurisprudence,"  Lect.  VI;  Bliss, 

"On  Sovereignty,"  chs.6-8;  Bluntschli,  "Allgemeine  Staatslehre," 
bk.  VII,  chs.  1-3;  BoREL,  "Etude  sur  le  Souverainete  de  I'Etat 
federatif";  Brie,  "Theorie  der  Staatenverbindungen,"  sec.  28  ff.; 
Brown,  "The  Austinian  Theory  of  Law,"  chs.  3,  5;  Bryce,  "The 
Nature  of  Sovereignty,"  in  his  "Studies  in  Jurisprudence  and  His- 
tory," vol.  II;  Burgess,  "  Political  Science  and  Constitutional  Law," 
vol.  I,  bk.  II,  ch.  i;  Constant,  "Politique  constitutionnelle,"  vol.  I, 
ch.  i;  Dewey,  "Austin's  Theory  of  Sovereignty,"  "Political  Science 
Quarterly,"  vol.  IX;  Dicey,  "Law  of  the  Constitution,"  Lect.  II, 
also  his  "Law  and  Public  Opinion,"  Lect.  I;  Dock,  "Der  Souverani- 
tiits-begriff";  Esmein,  "Droit  constitutionnel,"  tit.  II,  ch.  2;  Froe- 
bel,  "  Theorie  der  Politik,"  chs.  5  and  6;  Gareis,  "Allgemeine  Staats- 
lehre," in  Marquardsen's  "  Handbuch,"  vol.  I,  sec.  10;  Gerber, 
"  Grundziige  eines  Systems  des  deutschen  Staatsrechts,"  sees.  7-13; 
Green,  "Political  Obligations,"  pp.  80-136;  Haucke,  "  Bodin,  eine 
Studie  liber  den  Begriff  der  Souveranitat  ";  Holland,  "Elements  of 
Jurisprudence,"  pp.  43-48,  321-323;  Jellinek,  "Recht  des  modernen 
Staates,"  bk.  V,  ch.  14;  also  his  "  Lehre  von  den  Staatenverbindun- 
gen," pp.  21-58;  Lewis,  "Use  and  Abuse  of  PoHtical  Terms,"  pp. 
41-57;  Lowell,  "Essays  on  Government,"  No.  5;  Maine,  "Early 
History  of  Institutions,"  Lects.  XII,  XIII;  McKechnie,  "The  State 
and  the  Individual,"  chs.  4,  10;  Merriam,  "History  of  Sovereignty 
since  Rousseau,"  ch.  i;  Meyer,  "Deutsches  Staatsrecht,"  sec.  6; 
Mulford,  "The  Nation,"  ch.  8;  Oppenheim,  "International  Law," 
vol.  I,  pt.  I,  ch.  i;  Pollock,  "History  of  the  Science  of  Politics,"  ch. 
4;  Pradier-Fodere,  "Principes  generaux  de  Droit  de  Politique," 
etc.,  ch.  8;  Rehm,  "Allgemeine  Staatslehre,"  in  Marquardsen's 
"Handbuch,"  Einleitungsband,  sees.  10-16;  Ritchie,  "The  Con- 
ception of  Sovereignty,"  "  Annals  American  Academy  of  Political 
and  Social  Science,"  vol.  I;  also  his  "Darwin  and  Hegel,"  ch.  8; 
SiDGWiCK,  "Elements  of  Politics,"  ch.  21;  Waitz,  "Grundziige  der 
PoUtik,"  pp.  153-219;  Willoughby,  "Nature  of  the  State,"  chs.  9, 
11;  Wilson,  "An  Old  Master  and  Other  Essays,"  ch.  3. 

237 


238 


SOVEREIGNTY 


Sover- 
eignty the 
most  Dis- 
tinctive 
Mark  of 
the  State 


The 

Term 


I.  DEFINITIONS  AND  DISTINCTIONS;  LEGAL  VERSUS  POLITI- 
CAL sovereignty;  DE  facto  versus  DE  jure  SOVER- 
EIGNTY 

The  one  mark  which  fundamentally  distinguishes  the 
state  from  all  other  human  associations  is  supremacy  of  will 
and  action  —  the  supreme  power  to  command  and  enforce 
obedience.  It  is  not  enough  that  the  state  should  have  a  sin- 
gle collective  will  —  other  associations  have  that  —  but  its 
will  must  dominate  all  other  wills  and  override  them  in  case 
of  conflict.  There  is  in  every  independent  political  com- 
munity not  in  the  habit  of  obedience  to  a  superior,  as  Sir 
Henry  Maine  has  observed,  some  single  person  or  some  com- 
bination of  persons  which  has  the  power  of  compelling  other 
minds  to  do  exactly  as  it  pleases,  and,  he  adds,  this  person  or 
agency  may  be  found  as  certainly  as  the  center  of  gravity  in 
a  mass  of  matter.^  To  this  power,  legally  speaking,  all  in- 
terests are  potentially  subject,  and  all  wills  subordinate. 
We  call  this  attribute  or  power  sovereignty.  The  study  of 
its  nature  and  characteristics  constitutes  one  of  the  most 
important,  if  not  the  most  important,  topic  in  political 
science.^ 

The  term  "  sovereignty "  (souve'rainete)  is  derived 
from  the  Latin  superanus  (supreme,  sovereign),  and 
was  first  employed  by  Bodin  in  his  celebrated  work 
"De  la  Republique,"  published  in  1576.^  The  idea,  how- 
ever, is   as   old    as   Aristotle.^     Since    Bodin   first   intro- 

'  "Early  History  of  Institutions,"  p.  349. 

*  Cf.  Willoughby,  "Nature  of  the  State,"  p.  185. 

*  See  Schulze,  "DeutschesStaatsrecht,"  vol.  I,  sec.  16;  Bluntschli,  "Allgemeine 
Staatslehre,"  bk.  VII,  ch.  i;  also  his  "  Geschichte  der  neueren  Staatswissen- 
schaften,"  p.  32. 

*  See  his  "  Politics,"  III,  ch.  7.  There  is  no  exact  equivalent  in  the  Ger- 
man language  for  the  term  sovereignty,  iht  i&vms"  Herrschaft,"  "  Obergewalt," 

" Staatsgewali,"  and  "Siaatshoheit"  being  variously  used,  though  there  is  a  shade 
of  difference  between  them.  Thus  "Obergewalt"  rather  signifies  internal  sov- 
ereignty; "Staatshoheii"  denotes  dignity  and  majesty;  " Staatsgewalt,"  power 
without  reference  to  dignity,  etc. 


DEFINITIONS  AND   DISTINCTIONS  239 

duced  the  term  into  the  literature  of  political  science,  the 
word  and  the  idea,  observes  Bluntschli,  have  exercised  a 
vast  influence  on  the  development  of  constitutions  and  on 
the  whole  politics  of  modern  times/ 

Definitions  of  sovereignty,  like  definitions  of  the  state,  Defini. 
are  almost  infinite  in  number.  Bodin,  the  first  writer  *^°"' 
to  employ  the  term,  defined  it  as  "the  summa  in  cives  ac 
subditas  legibusque  soluta  poiestas"  —  the  supreme  power 
of  the  state  over  citizens  and  subjects,  unrestrained  by 
law.  Grotius,  who  wrote  half  a  century  later,  defined  it 
as  "the  supreme  political  power  vested  in  him  whose  acts 
are  not  subject  to  any  other  and  whose  will  cannot  be  over- 
ridden." ^  Blackstone  conceived  it  to  be  "the  supreme,  ir- 
resistible, absolute,  uncontrolled  authority  in  which  the  jura 
siimmi  imperii  reside."  ^  Jellinek  has  defined  it  as  "that 
characteristic  of  the  state  in  virtue  of  which  it  cannot  be 
legally  bound  except  by  its  own  will  or  limited  by  any  other 
power  than  itself."  *  The  French  publicist  Duguit  defines 
it  simply  as  the  power  of  willing  and  commanding.^  Bur- 
gess characterizes  it  as  "original,  absolute,  unlimited 
power  over  the  individual  subject  and  over  all  associations 
of  subjects."  *  Again  he  calls  it  "the  underived  and  inde- 
pendent power  to  command  and  compel  obedience."  ' 

1  Op.  cit.,  bk.  VII,  ch.  I. 

*  "De  Jure  Belli  et  Pads,"  bk.  I,  ch.  3,  Whewell's  ed.,  p.  112. 

'"Commentaries  on  the  Laws  of  England,"  Chase's  ed.,  p.  14.  Justice 
Story  of  the  United  States  defined  it  in  almost  the  same  language  —  see  his  "  Com- 
mentaries on  the  Constitution  of  the  United  States,"  vol.  I,  sec.  207. 

^"Lehre  von  den  Staatenverbindungen,"  p.  34;  also  his  "Recht  des  mod. 
Staates,"  pp.  421  ff. 

'  "Droit  constitutionnel,"  p.  117. 

'  "Political  Science  and  Constitutional  Law,"  vol.  I,  p.  52. 

'  "Political  Science  Quarterly,"  vol.  Ill,  p.  128.  Other  definitions  are  the  fol- 
lowing: "Sovereignty  is  that  power  which  is  neither  temporary  nor  delegated,  nor 
subject  to  particular  rules  which  it  cannot  alter,  nor  answerable  to  any  other  power 
on  earth,"  Pollock,  "  Science  of  Politics,"  p.  49 ;  "  Sovereignty  is  the  daily  operative 
power  of  framing  and  giving  eflacacy  to  the  laws,"  Wilson,  "  Old  Master  and  Other 
Essays,"  p.  81 ;  "  Sovereignty  is  the  supreme  will  of  the  state,"  Willoughby,  "Nature 
of  the  State,"  p.  280,  see  also  his  "  American  Constitutional  System,"  p.  4.     For  other 


240 


SOVEREIGNTY 


Titular 
V.  Actual 
Sover- 
eignty. 


Legal  V. 
Political 
Sover- 
eignty. 


Before  proceeding  with  a  discussion  of  the  attributes 
of  sovereignty  it  will  be  well  for  us  to  differentiate  between 
the  several  meanings  which  the  term  has  come  to  possess. 
In  the  first  place,  we  may  note  the  distinction  between 
titular  and  actual  sovereignty.  Titular  sovereignty  is 
the  supremacy  fictitiously  attributed  to  a  ruling  prince, 
who  personifies  the  power  and  majesty  of  the  state  and  in 
whose  name  the  government  is  conducted,  the  real  sover- 
eignty being  in  other  hands.  Thus  the  crowned  heads  of 
Europe  are  officially  designated  as  "sovereigns,"  though  of 
course  they  are  only  such  in  a  nominal  or  titular  sense. 

Again,  we  must  distinguish  between  legal  and  political 
sovereignty.  The  former  represents  the  lawyer's  concep- 
tion of  sovereignty,  that  is,  sovereignty  as  the  supreme  law- 
making power.  The  legal  sovereign,  therefore,  is  that 
determinate  authority  which  is  able  to  express  in  a  legal 
formula  the  highest  commands  of  the  state;  that  power 
which  can  override  the  prescriptions  of  the  divine  law, 
the  principles  of  morality,  the  mandates  of  public  opinion, 
etc.  This  is  the  only  sovereignty  recognized  by  the  courts. 
Behind  the  legal  sovereign,  however,  is  another  power, 
legally  unknown,  and  incapable  of  expressing  the  will  of  the 
state  in  the  form  of  legal  command,  yet,  withal,  a  power  to 
whose  mandates  the  legal  sovereign  must  in  practice  bow 
and  whose  will  must  ultimately  prevail  in  the  state.  This  is 
the  political  sovereign.  In  a  narrower  sense  the  electorate 
constitutes  the  political  sovereign,  yet  in  a  wader  sense  it  may 
be  said  to  be  the  v/hole  mass  of  the  population,  including 
every  person  who  contributes  to  the  molding  of  public  opin- 
ion.^   Powerful  as  it  is,  however,  it  cannot  itself  express  its 

definitions  see  Gareis,  "  Allgemeine  Staatslehre,"  sec.  10;  Austin,  "Jurisprudence," 
Lect.  6;  Bornhak,  "Allgemeine  Staatslehre,"  p.  9;  Bluntschli,  "Allgemeine  Staats- 
lehre, bk.  VII,  ch.  I. 

^  "Thus,"  says  Herbert  Spencer,  "that  which  from  hour  to  hour  in  every  country 
governs  despotically  or  otherwise  produces  the  obedience,  making  political  action 
possible,  is  the  accumulated  and  organized  sentiment  felt  towards  inherited  institu- 
tions, made  sacred  by  traditions ;  .  .  .  hence  it  is  undeniable  that,  taken  in  its  widest 


LEGAL   VERSUS   POLITICAL   SOVEREIGNTY  241 

will  in  the  form  of  a  legal  rule,  except  where  the  principle 
of  the  pure  democracy  prevails,  though  it  may  command  the 
legislature  to  do  its  bidding,  and  if  the  command  is  clearly 
pronounced  and  fully  understood,  it  will  not  be  lightly  dis- 
regarded. 

Where  the  will  of  the  legal  sovereign  and  the  political  The  Legal 
sovereign  conflict,  the  former  must,  however,  take  prece-  ^^'^""e'^ 
dence,  since  only  that  which  has  been  embodied  in  legal 
form  will  be  enforced  by  the  courts,  however  much  more  in 
accordance  with  the  principles  of  expediency  or  abstract 
justice  the  mandate  of  the  political  sovereign  may  seem  to 
be.  The  legal  sovereign,  observes  a  well-known  writer, 
is  the  lawyer's  sovereign  qua  lawyer,  the  sovereign  beyond 
which  lawyers  and  courts  refuse  to  look.  For  the  lawyer  a 
law  may  be  good  law,  legally,  though  passed  by  a  parlia- 
ment which  has  been  condemned  by  the  political  sovereign, 
the  electorate.  With  the  wishes  or  feelings  of  the  electors 
the  lawyer  as  lawyer  has  nothing  to  do.*  He  may  take  into 
consideration  their  opinions  and  wishes,  but  until  the  latter 
have  been  embodied  in  a  written  legal  command  they  are 
for  him  mere  hrutum  fulmen.  James  Bryce  has  remarked 
that  the  distinction  between  legal  and  political  sovereignty 
is  largely  the  result  of  the  difl^erence  between  the  juristic 
and  the  popular  conception  of  sovereignty.  "To  an  ordi- 
nary layman,"  he  says,  "  the  sovereign  is  that  person  or  body 
of  persons  which  can  make  his  or  their  will  prevail  in  the 
state,  who  is  acknowledged  to  stand  at  the  top,  who  can 
get  his  own  way  and  make  others  go  his.  For  the  lawyer, 
however,  a  more  definite  conception  is  required.  To  him 
the  sovereign  is  no  other  person  or  body  than  him  to  whose 
directions  the  law  attributes  legal  force,  the  person  or  body 
in  whom  resides  as  of  right  the  ultimate  power  of  laying 

acceptation,  the  feeling  of  the  community  is  the   sole  source  of  political    power." 
(Quoted  by  Woodrow  Wilson  in  "Old  Master  and  Other  Essays,"  p.  72.) 

^  Ritchie,  "Annals  of  the  American  Academy  of  Political  and  Social  Science,"  vol. 
i,  p.  401. 

POL.  SCI.  —  16 


of  the  Dis- 
tinction 


242  SOVEREIGNTY 

down  general  rules.  This  person  or  body  is  the  legal  sover- 
eign and  represents  the  juristic  conception."  ^ 
Criticism  Some  Writers  reject  the  distinction  between  legal  and 
poHtical  sovereignty  on  the  ground  that  it  seems  to  involve 
the  recognition  of  a  dual  sovereignty  in  the  state.'  A  little 
reflection,  however,  will  show  that  the  distinction  between 
legal  and  political  sovereignty  does  not  rest  upon  the  princi- 
ple of  a  divided  sovereignty,  but  rather  upon  the  distinc- 
tion between  two  difl^erent  manifestations  of  one  and  the 
same  sovereignty  through  difl^erent  channels.  As  has 
been  said,  the  one  may  not  harmonize  with  the  other, 
that  is,  the  expressed  will  of  the  legal  sovereign  may  not  be 
that  which  the  political  sovereign  has  commanded,  in 
which  case  the  legal  sovereign  ought  to  be  reorganized  or 
reconstituted  by  a  new  election,  otherwise  the  will  of  the 
electorate  cannot  be  made  effective.  This  is  nothing  more 
than  saying  that  law  ought  to  conform  to  public  opinion 
when  properly  expressed ;  that  the  legislator  ought  to  obey 
the  mandate  of  the  electorate ;  and  that  when  he  does  not, 
the  electorate  and  the  legislature  are  out  of  harmony  and 
should  be  "  reharmonized  "  by  new  elections.  The  problem 
of  good  government,  says  Professor  Ritchie,  is  largely  the 
problem  of  the  proper  relation  between  the  legal  and  the  ul- 
timate political  sovereignty.^  Of  course,  where  the  principle 
of  the  pure  democracy  prevails,  the  possibility  of  this  diver- 
gence between  the  will  of  the  legal  and  political  sovereigns 
is  eliminated,  for  under  such  conditions  the  two  are  identi- 
cal. In  a  pure  democracy  the  expressed  will  of  the  elec- 
torate is  not  mere  opinion  or  mandate,  but  law  itself.  Ordi- 
narily, however,  the  legal  sovereign  is  organized   separate 

*  "Studies  in  History  and  Jurisprudence,"  vol.  II,  p.  505. 

*  Sidgwick,  for  example,  in  his  "Elements  of  Politics,"  App.  A. 
'  "Annals  of  the  American  Academy  of  Political  and  Social  Science,"  vol.  I,  p. 

402.  Cf.  also  McKechnie:  "The  will  of  the  legal  sovereign  is  or  should  be  the  au- 
thorized embodiment  or  manifestation  of  the  will  of  the  political  sovereign.  If  the 
popular  will  is  accurately  expressed  by  the  legal  sovereign,  the  power  of  the  people 
is  effective,  otherwise  it  is  not."     "The  State  and  the  Individual,"  p.  131. 


LEGAL   VERSUS   POLITICAL   SOVEREIGNTY  243 

and  distinct  from  the  political  sovereign,  and  is  either 
some  determinate  organ  like  the  British  Parliament  or  a 
constituent  body  called  into  existence  for  the  specific  pur- 
pose of  formulating  and  expressing  the  sovereign  will. 

The  distinction  between  legal  and  political  sovereignty  The  Dis- 
is  most  prominent  in  those  countries  like  Great  Britain  Great'"  ^ 
whose  constitutional  enactments  proceed  from  the  legisla-  Britain 
ture,  where,  in  consequence,  there  is  no  legal  distinction  be- 
tween constitutional  and  statute  law/  In  Great  Britain 
the  Parliament  is  both  the  ordinary  legislative  body  and 
the  constituent  assembly.  It  is  legally  omnipotent  and 
subject  to  no  restraints  except  those  of  a  moral  and  physi- 
cal character.  There  is  no  person  or  body  of  persons  in 
Great  Britain  capable  of  making  rules  which  can  override  or 
derogate  from  an  act  of  Parliament.  The  British  Parlia- 
ment is  so  omnipotent,  legally  speaking,  says  Dicey,  that 
it  can  adjudge  an  infant  of  full  age;  it  may  attaint  a  man 
of  treason  after  death ;  it  may  legitimize  an  illegitimate  child, 
or,  if  it  sees  fit,  make  a  man  a  judge  in  his  own  case.^  By  the 
act  of  1716  it  did  what  only  a  sovereign  body  can  do,  when 
it  prolonged  its  own  existence  from  three  to  seven  years. 
It  can  alter  the  constitution  by  the  same  legal  processes 
that  are  followed  in  the  enactment  of  an  ordinary  statute. 

No  court  will    listen    to    an  argument  against  the  va-  TheSover- 
lidity  of  an  act  of  Parliament,  even  though  it  be  contrary  p^"JJ.°' 
to  the  most  sacred  prescriptions  of  the  constitution.     It  is  ment 
clear,  therefore,  that  the  legal  sovereignty  of  the  British 
state  is  in  the  Parliament,   and  hence  there  is  no   legal 
authority  in  existence  which  can  restrain  it  or  override  its 
acts.' 

'  On  the  distinction  between  legal  and  political  sovereignty,  between  Staats- 
souverdnitdt  and  Rechtssouverdnitat,  see  Krabbe,  "  Die  Lehre  der  Rechtssouve- 
ranitat,"  especially  ch.  i. 

^  "Law  of  the  Constitution,"  Second  ed.,  p.  45. 

'  Sidgwick  is  one  of  the  few  writers  who  is  disposed  to  question  the  legal  omnipo-  " 
tence  of  the  English  Parliament.     He  contends  that  its  sovereignty  was  not  generally 
accepted  until  a  comparatively  recent  date,  and  that  even  as  late  as  the  eighteenth 


244 


SOVEREIGNTY 


The  Sover- 
eignty of 
the  Elec- 
torate 


Limita- 
tions upon 
Sover- 
eignty 


Yet  there  Is  a  sense  in  which  the  EngHsh  Parliament  is 
not  sovereign.  There  is  a  power  above  Parliament  whose 
mandates  it  must  obey  and  whose  will  must  ultimately 
prevail  in  all  governmental  matters.  This  is  the  will 
pronounced  by  the  electorate  at  a  general  parliamentary 
election.  The  lawyers  do  not  recognize  this  sovereignty 
and  the  courts  do  not  take  notice  of  it,  and  even  the  Par- 
liament itself  might  for  a  time  lawfully  resist  it,  but  in  the 
end,  if  the  electorate  insists  upon  obedience,  Parliament 
must  bow  before  the  popular  will  and  enact  its  commands 
into  law.  In  this  sense  the  electorate  and  not  Parliament 
is  sovereign,^ 

While  attempting  to  justify  the  existence  of  that  sover- 
eignty which  has  no  legal  basis,  we  must  not,  however,  over- 
look the  limitations  and  conditions  under  which  it  is  entitled 
to  recognition.  The  "general  will,"  the  "sovereignty  of  the 
people,"  or  whatever  we  may  choose  to  call  the  controlling 
power  behind  the  organ  through  which  the  will  of  the  state 
is  given  legal  formulation,  are  rather  vague  and  loose 
expressions  and  when  not  used  with  proper  discrimination 
lead  to  misconception  and  even  to  mischief.  As  Professor 
Sidgwick  has  well  said,  "There  is  a  certain  sense  in  which 
the  mass  of  the  people  in  any  community  may  be  said  to 
be  the  ultimate  depository  of  supreme  political  power, 
though  it  is  misleading  to  say  that  the  people  are  every- 
where sovereign."  ^  To  maintain  the  doctrine  of  popular 
sovereignty  without  restriction  is  to  ignore  the  fundamen- 

century  there  were  to  be  found  dicta  of  high  judges  recognizing  legal  limitations  on 
the  power  of  Parliament.  He  quotes  Holt  in  support  of  the  proposition  that  if 
Parliament  should  ordain  that  a  person  should  be  a  judge  in  his  own  case  the  act 
would  be  void.     "Elements  of  Politics,"  p.  28. 

'  See  Austin,  "  Jurisprudence,"  vol.  I,  pp.  252  et  seq. ;  Dicey,  "Law  of  the  Consti- 
tution," pp.  68-69.  Cf.  also  Locke  ("Two  Treatises  of  Government,"  bk.  II,  ch.  11), 
who,  obviously  thinking  of  the  British  constitution,  calls  attention  to  the  fact  that  while 
the  legislature  is  the  supreme  power  in  the  state  it  is  only  a  "fiduciary  power,"  since 
there  still  remains  in  the  people  a  "superior  power  to  remove  or  alter  the  legislature 
when  they  find  the  will  of  the  legislature  to  be  contrary  to  the  will  of  the  people." 

^  "Elements  of  Politics,"  p.  630. 


DE   FACTO   VERSUS   DE   JURE   SOVEREIGNTY  245 

tal  distinction  between  power  legally  exercised  and  power 
usurped  and  illegally  exercised.  The  will  of  the  people 
expressed  otherwise  than  through  legally  constituted  chan- 
nels is  not  sovereign  any  more  than  the  unofficial  opinions 
of  the  members  of  a  legislative  body  are  law/  The  sover- 
eignty of  the  people  has  a  meaning  and  is  entitled  to 
legal  recognition  only  when  it  is  the  sovereignty  of  the 
people  organized  in  their  legislative  bodies  or  constituent 
assemblies.^ 

In  the  next  place  a  distinction  may  be  made  between  the  De factor 
sovereignty  which  is  actually  obeyed  by  the  inhabitants  sove"-^ 
of  the  state,  though  it  may  be  without  legal  basis,  and  the  eighty 
sovereignty  which  according  to  legal  right  is  entitled  to 
the  obedience  of  the  people,  but  of  which  in  fact  the  bearer 
may  be  temporarily  dispossessed  or  which  for  other  reason  is 
incapable  of  making  its  will  prevail.^  That  person  or  body 
of  persons  who  is  in  fact  dominant  in  the  state,  who  for  the 
time  receives  the  actual  obedience  of  the  great  mass  of  the  in- 
habitants, who  constitutes  the  strongest  power  in  the  state, 
is  the  actual  or  de  facto  sovereign,  though  not  necessarily 
the  legal  sovereign.  This  sovereign  may  be  a  usurping 
king,  a  self-constituted  assembly,  a  military  dictator,  or 
even  a  priest  or  a  prophet;  in  either  case  the  sovereignty 
rests  upon  physical  power  or  spiritual  influence  rather 
than  upon  legal  right.  History  abounds  in  examples  of 
such  sovereignties.      Cromwell,  after  he  had  dissolved  the 

'  Compare  on  this  point  McKechnie,  "The  State  and  the  Individual,"  pp.  131  et 
seq. 

'  It  is  neither  incorrect  nor  mischievous,  says  Sir  George  C.  Lewis,  to  speak  of  the 
sovereignty  of  the  people  in  states  in  which  they  are  not  sovereign,  if  it  be  done  in  a 
metaphorical  sense  to  signify  the  moral  control  and  influence  over  the  legislature 
and  if  the  distinction  between  legal  power  and  moral  influence  be  kept  in  mind  and  real 
sovereignty  be  not  confused  with  figurative  sovereignty.  "Use  and  Abuse  of  Polit- 
ical Terms,  p.  48.  On  the  proper  use  of  the  terms  "sovereignty  of  the  people" 
and  "sovereignty  of  the  general  will,"  see  Bluntschli,  "Allgemeine  Staatslehre," 
bk.  VII,  ch.  i;   and  Green,  "Political  Obligations,"  pp.  98-104. 

'  On  the  distinction  between  legal  sovereignty  and  the  "sovereignty  of  fact,"  see 
Esmein,  "Droit  constitutionnel, "  3d  ed.,  p.  187. 


246 


SOVEREIGNTY 


Examples 
of  De  facto 
Sover- 
eignties 


Rights  of 
De  facto 
Sover- 
eigns and 
their  Ad- 
herents 


Long  Parliament,  Napoleon,  after  he  had  overthrown  the 
Directory,  the  English  convention  which  offered  the  crown 
to  William  and  Mary,  the  French  assembly  which  made 
peace  with  Germany  in  1871,  the  Southern  Confederacy 
from  1 86 1  to  1865,  are  instances  of  actual  sovereignties 
which  rested  upon  no  legal  basis,  though  some  of  them 
ultimately  became  de  jure  sovereignties  through  the  ac- 
quisition of  a  legal  status.  The  temporary  occupation  of 
the  part  of  a  state's  territory  by  a  hostile  army  when  the 
commander  displaces  the  local  authority  and  exacts  obe- 
dience from  the  inhabitants  is  another  example  of  de  facto 
sovereignty  of  which  history  affords  many  instances/  In 
some  of  the  instances  cited  above,  the  usurping  sovereign 
expelled  the  legal  sovereign  from  his  rightful  seat  and  by 
force  compelled  the  obedience  of  the  inhabitants. 

It  is  an  established  rule  of  pubhc  law  that  the  adherents 
of  the  de  facto  sovereign  in  case  of  a  war  between  it  and  the 
de  jure  sovereign  do  not  incur  the  penalties  of  treason  and 
under  certain  limitations  the  obligations  assumed  by  it  in 
behalf  of  the  country  or  the  public  acts  performed  by  it 
will  be  respected  by  the  de  jure  sovereign  when  it  is  re- 
stored to  its  rightful  place. ^  It  is  also  a  rule  that  where 
the  de  facto  sovereign  gives  evidence  of  his  ability  to  main- 
tain his  supremacy  and  command  the  obedience  of  the  great 
mass  of  the  people,  he  shall  be  morally  entitled  to  receive 
the  recognition  of  foreign  states.  Other  examples  of  de  facto 
sovereignties  occur  where  the  power  of  the  legal  sovereign 
has  been  superseded  by  the  moral  influence  of  some  per- 
son, body  of  persons,  or  government.  Such  was  the  power 
wielded  by  the  former  Shoguns  in  Japan,  and  such  is  the 

*  See  the  decisions  of  the  United  States  Supreme  Court  in  U.S.  v.  Rice,  4  Whea- 
ton;    and  Fleming  v.  Page,  9  Howard. 

^  See  the  case  of  Thorrington  v.  Smith,  decided  by  the  U.S.  Supreme  Court  in 
1868,  8  Wallace,  p.  i.  In  this  case  the  Supreme  Court  held,  however,  that  the  South- 
ern Confederacy  was  not  an  example  of  a  de  facto  sovereign  in  the  sense  that  its  acts 
or  obligations  were  binding  upon  the  states  or  the  national  government,  after  the 
dissolution  of  the  Confederacy. 


DE   FACTO   VERSUS   DE   JURE   SOVEREIGNTY  247 

power  exercised  by  the  British  government  in  Egypt  to- 
day. 

Dejure  sovereignty,  on  the  other  hand,  has  its  foundation  De  jure 
in  law,  not  in  physical  power,  and  the  person  or  body  of  e°Jnty 
persons  by  whom  it  is  exercised  can  always  show  a  legal 
right  to  rule/  This  is  the  sovereignty  which  the  law  recog- 
nizes and  to  which  it  attributes  the  right  to  govern  and 
exact  obedience.  It  does  not  depend  for  its  validity  upon 
obedience  actually  rendered,  for  the  law  assumes  the  obe- 
dience to  be  enforceable.  As  a  matter  of  fact  it  may  not 
be  the  actual  sovereign,  for  it  may  be  expelled,  as  has  been 
said,  from  its  rightful  place  or  may  have  temporarily 
disappeared  through  disorganization  or  disintegration;  but, 
however  this  may  be,  it  has  legal  right  on  its  side  and  is 
lawfully  entitled  to  command  and  exact  obedience.  Mani- 
festly, every  consideration  of  expediency,  however,  requires 
that  the  sovereign  in  actual  control  should  be  legally  en- 
titled to  rule,  that  is,  physical  power  and  mastery  ought  to 
rest  upon  legal  right.  In  reality  the  sovereign  who  succeeds 
in  maintaining  his  claim  to  rule  usually  becomes  in  the 
course  of  time  the  legal  sovereign,  through  the  acquies- 
cence of  the  people  or  the  reorganization  of  the  state, 
somewhat  as  actual  possession  in  private  law  ripens  into 
legal  ownership  through  prescription.  On  account  of  the  Conver- 
manifest  advantages  which  flow  from  the  exercise  of  power  Actual 
resting  on  strict  legal  right  rather  than  upon  mere  physical   s°^^/-.  ^ 

°  .  .  .  .         eigntymto 

force,  the  new  sovereign  sometimes  has  his  de  facto  claim  Legal  Sov- 
converted  into  a  legal  right  by  election  or  ratification.  "^"*^ 
This  was  done,  e.g.,  by  William  the  Conqueror  in  1066  and 
by  Napoleon  III  of  France  in  1852.  Such  an  act  on  the 
part  of  the  new  sovereign  by  thus  establishing  a  legal 
basis  for  his  power  strengthens  his  moral  claim  to  the  obe- 
dience of  the  people  and  diminishes  the  danger  of  conspir- 
acies  and  rebellions  on  the  part  of  the  adherents  of  the 

'  For  other  examples  of  "actual  "  sovereignties,  see  Bryce,  "Studies  in  History  and 
Jurisprudence,  vol.  IL  op.  513-5116. 


248 


SOVEREIGNTY 


displaced  sovereign.  There  is,  as  Bryce  well  observes,  a 
natural  and  instinctive  opposition  to  submission  to  power 
which  rests  only  on  force.* 


Perma- 
nence of 
Sover- 
eignty 


Exclu- 
sivenesB 


All-com- 
prehen- 
siveness 


II.    THE   ATTRIBUTES   OF   SOVEREIGNTY 

We  may  enumerate  the  distinguishing  attributes  of 
sovereignty  as  permanence,  exclusiveness,  all-comprehen- 
siveness, absoluteness,  inalienability,  and  unity. 

By  the  quality  of  permanence  or  perpetuity  (Ewigkeit,  as 
the  Germans  describe  it),  we  mean  that  quality  in  virtue  of 
which  the  sovereignty  of  the  state  continues  without  in- 
terruption so  long  as  the  state  itself  exists.  It  does  not 
cease  with  the  death  or  dispossession  of  the  temporary 
bearer,  or  the  reorganization  of  the  state,  but  shifts  imme- 
diately to  a  new  bearer,  as  the  center  of  gravity  shifts 
from  one  part  of  a  physical  body  to  another  whenever  it 
undergoes  external  change.^ 

By  exclusiveness  we  mean  that  quality  in  virtue  of  which 
there  can  be  but  one  supreme  power  in  the  state,  entitled 
to  the  obedience  of  the  inhabitants.  To  hold  otherwise 
would  be  to  deny  the  principle  of  the  unity  and  organic 
nature  of  the  state  and  to  recognize  the  possibility  of  an 
imperium  in  imperio.^ 

Sovereignty  is  coextensive  in  its  operation  with  the 
jurisdiction  of  the  state  and  comprehends  within  its  scope 

'"Studies  in  History  and  Jurisprudence,"  vol.  II,  p.  516.  Austin  ("Jurisprudence," 
lect.  VI)  refuses  to  recognize  the  distinction  between  de  jure  and  de  facto  sovereignty, 
because,  as  he  says,  the  adjectives  " lawful  "  and  "unlawful  "  cannot  be  applied  to 
the  term  "sovereignty."  The  only  law,  he  declares,  by  which  a  person  or  body  of 
persons  can  be  sovereign  is  its  own  law,  its  own  command  or  will,  and  hence  to  say 
that  a  person  or  body  is  the  de  jure  sovereign  is  tantamount  to  saying  that  it  is  legal 
because  it  declares  itself  so  to  be.  According  to  Austin's  view  governments  may  be 
de  facto  or  de  jure,  but  the  latter  terms  are  inapplicable  to  sovereignty.  Compare  Mer- 
riam,  "History  of  Sovereignty  since  Rousseau,"  p.  147. 

*  Compare  Von  Mohl,  "Encyklopadie  der  Staatswissenschaften,"  sec.  16; 
Jellinek,  "Staatenverbindungen,"  p.  35.  The  idea  of  continuity  is  expressed  by 
the  old  French  proverb,  "Le  roi  est  mort;  vive  le  roi." 

'  Von  Mohl,  op.  cit.,  pp.  118-119.     Cf.  also  Burgess,  op.  oil.,  vol.  I,  p.  52. 


THE   ATTRIBUTES'  OF   SOVEREIGNTY  249 

all  persons  and  things  in  the  territory  of  the  state.  The 
modern  state  does  not  recognize  the  existence  of  any  staatlos 
person  within  its  jurisdiction.  For  reasons  of  pubHc  poHcy 
and  international  comity  civilized  states  voluntarily  re- 
linquish the  exercise  of  jurisdiction  over  the  diplomatic 
representatives  of  foreign  states  residing  within  their  ter- 
ritories, but  this  rule  of  extraterritoriality,  as  it  is  called,  is 
no  exception  to  the  principle  stated  above.  The  fact  that 
states  have  until  comparatively  recent  times  declined  to 
recognize  the  principle  of  extraterritoriality,  and  that  even 
now  any  state  may  expel  a  diplomatic  representative  from 
its  territory  and  thus  deprive  him  of  his  immunity,  are 
evidences  of  the  truth  of  the  proposition  that  the  sover- 
eignty of  the  state  is  all-embracing  and  all-comprehensive. 

By  the  quality  of  absolutism  we  mean  simply  that  sover-  Absoiu- 
eignty  is  legally  unlimited,  that  is,  it  is  subject  to  no  higher  **^™ 
power  —  an  attribute  which  results  from  the  very  nature 
of  the  thing  itself.     To  hold  otherwise  would  be  to  assume 
the  existence  of  a  higher  power  by  which  the  sovereign  is 
limited.^ 

By  the  quality  of  inalienability  we  mean  that  attri-  inaiiena- 
bute  of  the  state  by  virtue  of  which  it  cannot  cede  '^^ 
away  any  of  its  essential  elements  without  self-destruc- 
tion.^ Sovereignty  can  no  more  be  alienated,  says  Lieber, 
than  a  tree  can  alienate  its  right  to  sprout,  or  a  man  can 
transfer  his  life  or  personality  to  another  without  self- 
destruction.'  Rousseau  holds  the  same  view,  though  he 
admits  that  power  may  be  transferred.*  A  few  writers, 
however,  take  the  contrary  view.  Professor  Ritchie,  for 
example,    declares   that   the   doctrine  of   inalienability  is 

'  Compare  Von  Mohl,  op.  cit.,  p.  120. 

'  See  Bateman,"  Political  and  Constitutional  Law,"  sec.  125. 

*  "Political  Ethics,"  vol.  I,  p.  219;  cf.  Duguit,  "Droit  constitutionnel,"  p.  131. 
The  doctrine  of  inalienability  of  sovereignty  is  asserted  in  the  French  constitutions 
of  1 791  (Tit.  Ill,  sec.  I),  1793  (Decl.  25),  and  1848  (ch.  i,  sec.  i). 

*  "Contrat  social,"  bk.  II,  ch.  i. 


250 


SOVEREIGNTY 


Impre- 
scripti- 
bility 


belied  by  the  facts  of  history.^  Of  course  it  is  not  meant 
that  where  a  state  parts  with  a  portion  of  its  territory  it 
retains  its  sovereignty  over  the  territory  ahenated.  His- 
tory abounds  in  examples  of  territorial  cessions  involving 
the  alienation  of  the  sovereignty  of  the  state  over  the  ter- 
ritory ceded,  but  that  is  a  different  thing  from  saying  that 
the  state  may  cede  away  its  sovereignty  as  such;  that  is, 
part  with  a  constituent  element  without  which  it  could  no 
more  exist  than  a  man  without  heart  or  blood.  Nor  does 
the  principle  of  inalienability  mean  that  the  person  or  per- 
sons in  whom  the  sovereignty  is  for  the  time  reposed  may 
not  abdicate.  The  British  Parliament,  for  example,  might 
dissolve  itself  without  making  any  provision  for  calling 
another  Parliament,  or  the  Czar  of  Russia  might  voluntarily 
relinquish  his  rights  of  sovereignty  in  favor  of  a  Duma,  as 
he  seems  to  have  in  fact  lately  done;  but  there  would  not  be 
in  either  case  an  alienation,  but  only  a  shifting  of  the  re- 
pository or  abiding  place. 

Implied  in  the  principle  of  inalienability  of  sovereignty 
is  that  of  imprescriptibility,  according  to  which  sover- 
eignty cannot  be  lost  by  mere  lapse  of  time,  as  prop- 
erty in  land  may  be  lost  by  prescription  at  private 
law.'  There  is  an  old  doctrine  held  by  some  writers 
that  originally  the  people  were  sovereign  everywhere,  but 
through  the  long  and  uninterrupted  usurpation  of  sovereign 
power  by  kings  it  was  gradually  lost  to  the  people  by  opera- 
tion of  the  principle  of  prescription.  But  the  theory  has 
little  evidence  to  support  it. 


Sover- 
eignty 
cannot  be 
Limited 


III.     THE  ABSOLUTISM   OF   SOVEREIGNTY;    THEORY   OF 
LIMITATIONS 

Among  the  characteristics  of  sovereignty  which  merit  a 
more  extended  consideration  than  we  have   given  in  the 

'  Note   to   the   English   translation   of    Bluntschli's   "Allgemeine   Staatslehre " 
(Theory  of  the  State,  2d  ed.),  p.  496. 
*  Compare  Duguit,  op.  cit.,  p.  133. 


THEORY   OF  LIMITATIONS  251 

preceding  section  is  the  quality  of  absolutism.  Sover- 
eignty cannot  be  limited;  it  is  an  original,  not  a  de- 
rived power.  As  it  is  the  supreme  power  in  the  state, 
there  cannot,  legally  speaking,  be  any  authority  above  it, 
and  to  speak  of  it  as  being  limited  by  some  higher  power 
is  a  contradiction  of  terms.  Sovereignty,  as  Jellinek  re- 
marks, can  be  bound  only  by  its  own  will,  that  is,  it  can 
only  be  self-limited.^ 

While  from  the  very  nature  of  the  case '  sovereignty  Doctrine 
cannot  be  subject  to  legal  restrictions,  many  writers  rec-  Limita-^ 
ognize  the  existence  of  certain  moral  limitations  on  the  **°°s 
power  of  the  sovereign,  arising  from  the  natural  and 
inherent  rights  of  man  —  rights  which,  according  to  the 
views  of  some  authorities,  exist  independently  of  the  state 
and  cannot  therefore  be  restricted  or  lirnited  by  it.^  Thus, 
observes  a  well-known  writer,  "although  .  .  .  some  of 
those  who  have  written  on  sovereignty  described  the  sov- 
ereign as  being  subject  to  no  restraint  whatever,  his  sole  will 
being  absolutely  dominant  over  all  his  subjects,  there  has 
never  really  existed  in  the  world  any  person  or  even  any 
body  of  persons  enjoying  this  utterly  uncontrolled  power, 
with  no  external  force  to  fear  and  nothing  to  regard  except 
the  gratification  of  mere  volition."  ^  The  same  assertion  is 
made  by  Bluntschli,  who  declares  that  "there  is  no  such 
thing  on  earth  as  absolute  independence.  .  .  .  Even  the 
state  as  a  whole  is  not  almighty,  for  it  is  limited  externally  by 
the  rights  of  other  states  and  internally  by  its  own  nature 
and  by  the  rights  of  its  individual  members."  * 

Some  writers  maintain  that  the  sovereignty  of  the  state  is  Divine 
limited  by  the  prescriptions  of  the  divine  law,  or  by  the  power  ^^^j^ 
of  some  superhuman  authority.    The  Russian  publicist  Mar- 

*  "Lehre  von  den  Staatenverbindungen,"  pp.  35-36. 

^  "The  vast  mass  of  influences,"  says  Maine,  "which,  for  short,  we  may  call 
moral,  perpetually  shapes,  limits,  or  forbids  the  actual  direction  of  the  forces  of 
society  by  the  sovereign."     "Early  History  of  Institutions,"  p.  359, 

'  Bryce,  "Studies  in  History  and  Jurisprudence,"  vol.  II,  p.  523. 

*  "Allgemeine  Staatslehre,"  bk.  VII,  ch.  i. 


252  SOVEREIGNTY 

tens,  for  example,  in  his  definition  of  sovereignty  recognizes 
in  God  a  "legal  superior"  over  a  state  otherwise  "entirely 
sovereign."^  Bluntschli  asserts  that  nations  are  "respon- 
sible to  the  eternal  judgments  of  God"  as  well  as  to  "the 
facts  of  history."  "There  is  above  the  sovereign,"  says 
the  German  writer  Schulze,  "a  higher  moral  and  natural 
order,  the  eternal  principle  of  the  moral  law."  The  doctrine 
that  the  state  is  absolutely  supreme  and  incapable  of  do- 
ing wrong  is,  he  says,  fallacious  and  dangerous.^  Other 
alleged  limitations  on  sovereignty  are  those  arising  from 
the  law  of  nature,'  the  principles  of  morality,  the  teach- 
ings of  religion,  the  principles  of  abstract  justice,  immemo- 
rial custom,  long-established  traditions,  etc.  To  these  have 
been  added  the  limitations  imposed  by  the  rules  of  inter- 
national law,  the  particular  restrictions  imposed  by  con- 
ventions between  states,  and  limitations  imposed  by  states 
themselves  by  their  fundamental  law,  such,  for  example,  as 
the  method  of  procedure  for  altering  their  constitutions.* 

*  "For  a  state  to  be  entirely  sovereign,"  says  Martens,  "it  must  govern  itself  and 
acknowledge  no  legislative  superior  power  but  God;"  quoted  by  Lewis,  "Use  and 
Abuse  of  Political  Terms,"  p.  41.  For  an  argument  against  the  proposition  that 
sovereignty  is  unlimited  see  Benjamin  Constant,  "Politique  constitutionnelle,"  vol. 
I.,  ch.  I.,  especially  pp.  15-16. 

*  "Deutsches  Staatsrecht,"  vol.  I,  sec.  16.  See  also  Von  Mohl  (" Encyklopadie 
der  Staatswissenschaften,"  p.  117),  who  does  not  accept  as  a  literal  truth  the  Biblical 
doctrine  of  obedience  to  God  rather  than  man,  though  he  attaches  great  significance 
to  the  idea. 

^  Speaking  of  the  universal  binding  force  of  the  law  of  nature,  Blackstone  said, 
"No  human  laws  are  of  any  validity  if  contrary  to  this,  and  such  of  them  as  are  valid 
derive  all  their  force  and  all  their  authority,  mediately  or  immediately,  from  this 
original."     "  Commentaries,"  ed.  by  Chase,  pp.  5-6. 

*  On  the  subject  of  limitations  on  sovereignty  see  Bryce,  op.  cit.,  vol.  II,  pp.  510  et 
seq.;  Bentham,  "Fragment  on  Government,"  chs.  34-36;  Works,  vol.  I,  pp. 
289-291;  Ritchie,  "Annals  of  the  American  Academy  of  Political  and  Social 
Science,"  vol.  I,  p.  393;  Laveleye,  "Le  Gouvernement  dans  la  Democratic," 
vol.  I,  bk.  I,  ch.  6;  Woolsey,  "Political  Science,"  vol.  I,  p.  203;  Sidgwick, 
"Elements  of  Politics,"  p.  623;  Lowell,  "Essays  on  Government,"  ch.  5 ;  Dicey, 
"Law  of  the  Constitution,"  pp.  70-74;  Duguit,  " Droit  constitutionnel,"  pp.  122  e/ 
seq.  Some  French  writers  like  Cousin,  Guizot,  Constant,  and  Royer-Collard  have 
worked  out  a  theory  of  the  "sovereignty  of  reason  or  justice."     For  a  discussion 


THEORY    OF   LIMITATIONS  253 

It  must,  of  course,  be  admitted  that  In  a  certain  sense  Restric- 
the  exercise  of  sovereignty  is  subject  to  restrictions.  The  so^r-° 
most  despotic  monarch  respects  the  opinions  of  his  eig^^ty 
subjects  on  certain  questions  and  often  bows  to  their 
wishes.  Probably  no  sovereign,  whether  monarch  or 
assembly,  ever  existed  who  assumed  and  exercised  the  right 
to  change  any  law,  custom,  or  institution  at  his  pleasure 
without  regard  to  the  opinions  of  the  mass  of  the  popula- 
tion. All  sovereignty,  in  short,  must  be  conditioned  upon 
the  ready  obedience  or  acquiescence  of  those  over  whom 
it  is  exercised.^  The  sultan  of  Turkey,  for  example,  abso- 
lute as  he  is,  would  hardly  dare  interfere  with  the  religion 
of  his  subjects;  the  British  Parliament,  with  power  legally 
unlimited,  would  hesitate  to  tax  the  colonies,  or  to  pass  a 
decennial  act,  or  to  establish  the  Episcopal  Church  in  Scot- 
land; it  is  doubtful  if  any  Roman  emperor  would  have 
dared  to  subvert  the  national  religion  of  Rome;  Louis  XIV, 
who  is  credited  with  having  boasted  that  he  was  the  state, 
would  probably  never  have  been  able  to  force  Protestant- 
ism on  his  subjects. 

An  examination  of  these  limitations,  however,  will  show  SuchLimi 
that  legally  they  are  no  restrictions  on  sovereignty  at  all.  have^no 
The  law  of  nature,  the  principles  of  morality,  the  laws  of  ^^s^^ 
God,  the  dictatesof  humanity  and  reason,  the  law  of  nations, 
the  fear  of  public  opinion,  and  all  the  other  alleged  restric- 
tions on  sovereignty  have  no  legal  effect,  except  in  so  far  as 
the  state  chooses  to  recognize  them  and  give  them  force  and 
validity.     They  are  not  such  limitations  as  the  courts  will 
ordinarily  enforce  in  the  decision  of  legal  controversies. 
Thus,  if  the  English  Parliament,  which  is  the  legal  sover- 
eign in  the  British  Empire,  should  pass  an  act  opposed  to 

and  criticism  of  the  theory  see  Bluntschli,  op.  cit.,  bk.  VII,  ch.  i ;  also  Merriam, 
"History  of   Sovereignty,"  ch.  5. 

^  Bryce,  in  the  chapter  on  "  Government  by  Public  Opinion"  in  his  "American 
Commonwealth,"  observes  that  "governments  have  always  rested  and  must  rest, 
if  not  on  the  affection,  then  on  the  reverence  or  awe,  if  not  on  the  active  approval, 
then  on  the  silent  acquiescence,  of  the  numerical  majority." 


254 


SOVEREIGNTY 


Limita- 
tions of 
Interna- 
tional 
Law 


the  principles  of  morality  or  contrary  to  the  rules  of  inter- 
national law,  however  repugnant  the  statute  might  be  to 
the  moral  sense  of  the  people  or  their  ideas  of  justice  and 
good  faith,  it  would  not  be  legally  invalid.  The  courts 
would  presume  that  Parliament  did  not  intend  to  violate 
the  rules  of  morality  or  the  principles  of  international  law, 
and  they  would  not  listen  to  an  argument  which  rested  on 
the  assumption  that  Parliament  had  exceeded  its  author- 
ity/ If  in  any  case  the  limitations  of  the  divine  law  are 
recognized,  the  state  in  the  last  analysis  must  be  the  inter- 
preter of  the  divine  will,  so  that  in  fact  the  restriction 
is  nothing  but  a  self-limitation.  In  other  words  the 
principles  of  morality,  of  justice,  of  religion,  etc.,  so  far  as 
they  constitute  limitations  on  the  sovereign,  are  simply 
what  the  consciousness  of  the  state  decides  them  to  be,  for 
there  can  be  no  other  legal  consciousness  than  that  of  the 
state. 

Regarding  the  so-called  limitations  on  sovereignty  im- 
posed by  the  principles  of  international  law,  we  are  forced 
to  the  same  conclusion,  namely,  that  in  the  last  analysis 
they  are  nothing  more  than  "self-limitations."  ^  The 
subjects  of  international  law  are  sovereign  states,  and  in 
the  last  resort  they  must  be  considered  as  the  interpreters 
of  their  own  rights  and  of  their  obligations  to  other  states. 
There  is  no  higher  legal  power  to  enforce  the  obligations 
which  the  public  opinion  of  the  civilized  world  may  declare 
to  be  binding  upon  them.  States  are  subject  only  to  their 
own  wills,  not  to  any  outside  will.  Juristically  speaking, 
the  state  has  an  undoubted  right  to  refuse  to  be  bound  by 


'  Dicey,  "Law  of  the  Constitution,"  p.  59. 

'  The  courts  of  Great  Britain,  e.g.,  hold  that  no  principle  of  international  law  is 
enforceable  in  a  British  court  until  it  has  been  formally  adopted  into  the  body  of 
municipal  law  by  an  act  of  Parliament.  See  the  recent  case  of  West  Rand  Gold 
Mining  Company  v.  Rex,  discussed  in  the  "  American  Journal  of  International 
Law,"  vol.  II,  pp.  223  fF.  See  also  an  article  as  to  the  American  practice  on  this 
point,  entitled  "The  Legal  Nature  of  International  Law,"  by  W.  W .  Willoughby, 
in  the  "American  Journal  of  International  Law,"  vol.  II,  No.  2. 


THEORY   OF    LIMITATIONS  255 

a  particular  usage  of  international  law,  and  as  a  matter  of 
fact  the  courts  of  most  countries  are  bound  to  give  prece- 
dence to  municipal  statutes  in  preference  to  the  prescrip- 
tions of  international  law,  even  though  the  former  are 
contrary  to  the  latter/  And  so  as  regards  the  obligations 
of  the  state  which  it  may  have  imposed  upon  itself  by  ex- 
press convention  with  other  states.  They  are  not  legal 
limitations  on  the  sovereign  power,  but  conventional  agree- 
ments which  the  state  may  disregard  or  even  repudiate  so 
far  as  its  legal  right  to  do  so  is  concerned.  The  same  may 
be  said  of  the  alleged  limitations  set  by  the  state  upon  the 
manner  in  which  its  powers  shall  be  exercised,  such,  for 
example,  as  the  method  of  procedure  which  it  may  have 
prescribed  for  making  changes  in  its  own  constitutional  or- 
ganization. Such  rules  of  procedure  cannot  be  considered 
as  legal  restrictions  upon  the  sovereignty  of  the  state,  and 
it  is  a  matter  of  common  knowledge  that  such  provisions 
have  in  the  past  been  time  and  again  set  aside  for  other 
methods. 

The  inevitable  conclusion,  therefore,  to  which  we  are 
led,  is  that  all  attempts  to  place  legal  restrictions  upon 
sovereignty  are  futile  and  useless.  Whoever  or  whatever 
can  impose  limitations  on  the  power  of  the  state  is  itself 
the  sovereign,  and  not  until  we  reach  that  power  which  is 
unlimited  do  we  come  into  the  presence  of  the  sovereign. 
Supreme  power,  limited  by  positive  law,  says  Austin,  is  a 
flat  contradiction  in  terms. ^ 

The  doctrine  of  unlimited  sovereignty  is  sometimes  criti- 
cised on  the  ground  that  it  leads  to  the  legal  despotism  of 
the  state.  But  granting  arguendo  that  sovereignty  may  be 
limited  in  the  interest  of  liberty  or  good  government,  we  are 
no  better  off.     We  are  still  brought  face  to  face  with  another 

^  It  is  a  rule  of  the  English  and  American  courts,  however,  in  such  cases,  to  construe 
the  statute,  if  possible,  in  such  a  way  as  not  to  violate  the  rule  of  international  law. 

'"Jurisprudence,"  lect.  VI;  see  also  Burgess,  op.  cit.,  vol.  I,  p.  53.  This  is 
the  view  of  such  high  authorities  as  Esmein,  Markby,  Holland,  E.  C.  Clark, 
Ihering,  and  Funck-Brentano. 


256  SOVEREIGNTY 

sovereign,  namely,  that  which  imposes  the  limitation  —  the 
very  thing  from  which  we  are  seeking  to  escape.  John  Austin, 
with  his  usual  clearness  and  incisiveness,  stated  the  matter 
correctly  when  he  said:  "The  power  of  the  superior  sov- 
ereign imposing  the  restraints  on  the  power  of  some  other 
sovereign  superior  to  that  superior  would  still  be  abso- 
lutely free  from  the  fetters  of  positive  law.  For  unless  the 
imagined  restraints  were  ultimately  imposed  by  a  sover- 
eign not  in  a  state  of  subjection  to  a  higher  or  superior 
sovereign,  a  series  of  sovereigns  ascending  to  infinity  would 
govern  the  imagined  community,  which  is  impossible  and 
absurd."  ^ 

It  is  difficult  to  see  what  is  to  be  gained  by  trying  to 
avoid  such  a  conclusion.  It  is  necessary  to  recognize  in 
the  state  a  power  to  which  all  things  and  all  wills  are  po- 
tentially subject,  otherwise  the  state  is  no  different  funda- 
mentally from  the  other  associations  and  organizations 
into  which  mankind  is  grouped.  But  this  recognition  does 
not  imply  an  admission  of  the  moral  right  of  the  state  to 
control  and  regulate  all  the  interests  and  activities  of  the 
people  over  whom  sovereign  power  potentially  exists.  In 
all  modern  states  there  is  a  large  group  of  interests,  a  wide 
domain  of  human  conduct,  which  are  in  fact  exempt  from 
all  governmental  interference.  There  is  no  likelihood  that 
the  state  will  ever  exercise  all  of  the  power  which  legally 
belongs  to  it.  Considerations  of  expediency,  to  say  noth- 
ing of  justice,  require  that  in  practice  the  greater  part  of 
its  power  should  exist  only  in  potentia,  and  that  the  indi- 
vidual should  be  left  free  from  governmental  control 
within  a  certain  sphere.  Any  sovereign,  whether  monarch 
or  assembly,  which  should  attempt  to  exercise  its  un- 
doubted legal  power  to  regulate  all  the  interests  and  rela- 
tions of  human  life  would  soon  be  overthrown  by  revolution. 

It  is  difficult  to  see  how  the  doctrine  of  unlimited  sover- 
eignty is  inconsistent  with  the  idea  of  the  widest  liberty. 

*  "Jurisprudence,"  Students'  ed.,  p.  105. 


THE   INDIVISIBILITY   OF   SOVEREIGNTY  257 

It  does  not  require  profound  thinking  to  see  that  the  more  uniim- 
fully  and  completely  sovereign  the  state,  the  more  secure  l^^^^^Z' 
and  permanent  must  be  the  liberty  of  the  people/      During  compati- 
the  eighteenth  century  the  sovereignty  of  the    state  was  Liberty 
generally  confused  with  the  absolutism  of  particular  kings, 
and  therefore  the  doctrine  of  unlimited  sovereignty  had 
few  defenders  except  among  those  who,  like  Hobbes,  were 
the  apologists  of  certain  princes  who  sought  to  rule  with- 
out regard  to  constitutional  restrictions.     With  the  dis- 
appearance of  absolutism  in  government  and  the  general 
introduction  of  constitutionalism,  however,  the  theory  of 
the  unlimited  sovereignty  of  the  state  came  to  have  more 
advocates  than  opponents.     When  the  state  came  to  be 
organized  outside  of  the  government  and  sovereignty  was 
understood  in  its  true  light,  namely,  as  an  attribute  of  the 
former  rather  than  of  the  latter,  it  became  an  easy  matter 
to  reconcile  the  doctrine  of  an  unlimited  sovereignty  with 
that  of  a  limited  government. 

IV.     THE   INDIVISIBILITY   OF   SOVEREIGNTY 

Another   characteristic   of   sovereignty   which   requires  Theoiy 
more  detailed  consideration  Is  the  quality  of  unity.     Being  ^^j^lded 
the  highest  will  in  the  state,  it  cannot  be  divided  without  Sover- 
producing  several  wills,  which  is,  of  course,    inconsistent 
with  the  notion  of  sovereignty.     The  existence  of  several 
supreme  wills,  each  capable  of  issuing  commands  and  of 
exacting  obedience,  would  obviously  result  in  conflicts  and 
an  ultimate  paralysis  of  the  state.     If  the  several  supposed 
wills  were  coordinate,  obviously  neither  could  be  sovereign; 
if  one  were  superior  and  the  others  subordinate,  manifestly 
the  former  would  be  sovereign  and  the  latter  subject,  and 
what  would  appear  to  be  a  division  of  sovereignty  would 
in  fact  be  no  division.     By  no  one  has  this  truth  been  more 
forcibly  set  forth  than  by  the  American  statesman  John 

•  Cf.  Burgess,  "Political  Science  and  Constitutional  Law,"  vol.  I,  pp.  55  ff. 

POL.  SCI.  — 17 


258  SOVEREIGNTY 

C,  Calhoun,  in  his  "Disquisition  on  Government,"  written 
in  1851.  "Sovereignty,"  he  declared,  " is  an  entire  thing ;  to 
divide  it  is  to  destroy  it.  It  is  the  supreme  power  in  a 
state,  and  we  might  just  as  well  speak  of  half  a  square  or 
half  a  triangle  as  of  half  a  sovereignty."  ^  But  this  view  is 
by  no  means  universally  accepted  by  publicists  and  politi- 
cal writers  of  to-day.  The  existence  of  a  large  number  of 
petty  states  on  the  continent  of  Europe  during  the  six- 
teenth and  seventeenth  centuries,  which  were  practically, 
though  not  theoretically,  independent,  contributed  to  the 
spread  of  the  popular  belief  in  the  distinction  between 
part-sovereign  and  fully  sovereign  states  —  a  distinction 
which  rests  in  fact  on  the  notion  of  a  divided  sovereignty.^ 
In  more  recent  times  the  organization  of  so-called  composite 
states,  confederations,  real  unions,  and  federal  states,  and 
the  establishment  of  such  relationships  as  are  involved  in 
the  creation  of  protectorates,  have  powerfully  strengthened 
the  divisibility  theory.^ 
Dual  The  question  of  a  dual  sovereignty  first  became  a  con- 

eignty        trovcrsy  of  practical  politics  in  the  United  States  of  America 
^  *^®         toward  the  middle  of  the  nineteenth  century.      Under  the 
states        Articles  of  Confederation  each  member  of  the  union  expressly 
retained  its  own  sovereignty,  so  that  the  possibility  of  mis- 

*  Works,  vol.  I,  p.  146. 

*  Cf.  Oppenheim,  "International  Law,"  vol.  I,  p.  105. 

'  Recent  political  developments  in  various  parts  of  the  world  have  given  rise  to 
situations  which  in  the  opinion  of  some  writers  furnish  instances  of  ambiguous  sover- 
eignty. An  example  was  formerly  found  in  Manchuria,  which  is  politically  a  part 
of  China,  though  from  1900  to  1905  it  was  administered  by  Russia  in  accordance 
with  treaties.  Likewise  Bosnia  and  Herzegovina  have  since  1878  been  under  the 
administration  of  Austria-Hungary,  though  under  the  nominal  sovereignty  of  the 
Turkish  Empire.  The  island  of  Cyprus,  since  1878  nominally  a  part  of  Turkey, 
though  under  the  administration  of  England,  is  another  example.  There  is  also 
the  peculiar  situation  described  as  condominium,  where  two  states  exercise  sover- 
eignty conjointly  over  the  same  territory,  an  example  of  which  was  the  joint  oc- 
cupation and  administration  of  Schleswig-Holstein  by  Austria  and  Prussia  from 
1864  to  1866.  Another  example  is  the  joint  sovereignty  of  Belgium  and  Prussia  to- 
day over  Moresnet  (Kelmis).  See  Oppenheim,  "  International  Law,"  vol.  I,  pp. 
220-223. 


THE   INDIVISIBILITY   OF   SOVEREIGNTY  259 

understanding  was  avoided.  But  the  constitution  of  the 
federal  union  of  1789  was  silent  on  this  all-important  sub- 
ject, hence,  the  questions  were  left  open  as  to  whether 
sovereignty  remained  in  the  individual  states  where  it  had 
formerly  rested,  whether  it  was  in  the  united  state  created 
by  their  joint  agency,  or  whether  it  was  divided  between  the 
individual  states  on  the  one  hand  and  the  union  on  the 
other.  This  casus  omissus  was  doubtless  the  result  of  a 
compromise  between  the  conflicting  forces  of  particularism 
and  nationalism  in  the  convention  which  framed  the  con- 
stitution.^ 

The  theory  of  a  dual  sovereignty  under  the  American  Early 
federal  system  was  generally  held  by  publicists  in  America  ^p''^^"'^^ 
at  the  time  of  the  adoption  of  the  constitution,  it  was  enun- 
ciated in  the  "Federalist"^  by  Hamilton  and  Madison, 
and  was  adopted  at  an  early  date  by  the  Supreme  Court, 
which  held  that  the  United  States  was  sovereign  as  to  the 
powers  which  had  been  conferred  upon  it,  and  that  the 
states  were  sovereign  as  to  those  which  were  reserved  to 
them,  and  this  view  is  still  maintained  by  the  court.^  It  has 
received  the  approval  of  such  eminent  constitutional  lawyers 
as  Judges  Cooley  *  and  Story  ^  and  political  writers  like  De 
Tocqueville,   Wheaton,  Halleck,   Hurd,    Bliss,   and   many 

*  For  the  view  that  the  founders  of  the  republic  deliberately  evaded  the  responsi- 
bility of  formulating  their  will  on  this  important  question  rather  than  insist  upon  an 
answer  that  probably  would  have  resulted  in  the  rejection  of  the  constitution,  see  an 
article  by  A.  W.  Small,  entitled,  "  The  Beginnings  of  American  Nationality, "  in  the 
"Forum"  for  June,  1895.  For  a  contrary  view,  see  Willoughby,  "Nature  of  the 
State,"  p.  271. 

*  See  Nos.  32  and  39.  The  sovereignty,  said  Madison,  is  divided  between  the 
states  on  the  one  hand  and  the  union  on  the  other,  so  that  "  the  whole  sovereignty 
consists  of  a  number  of  partial  sovereignties." 

'  Chisholm  v.  Georgia  (1792),  2  Dallas  435.  In  this  case  the  Supreme  Court  de- 
clared that  "  the  United  States  are  sovereign  as  to  all  the  powers  of  government  actu- 
ually  surrendered  by  the  states,  while  each  state  in  the  union  is  sovereign  as  to  all 
powers  reserved."  See  also  Ware  v.  Hylton,  3  Dallas  232 ;  and  the  License  cases,  5 
How.  504,  538. 

*  "  Constitutional  Limitations,"  p.  4. 
'  "  Commentaries,"  sees.  207-208. 


26o 


SOVEREIGNTY 


Calhoun's 
Theory 


Views  of 

Foreign 

Publicists 


Others.^  "There  is  no  question,"  says  Hurd,  "that  the 
statesmen  of  all  sections  who  made  the  constitution  of  the 
United  States  understood  that  political  sovereignty  was 
capable  of  division  according  to  its  subject  and  powers."' 
Their  view  was  that  the  sovereignty  was  divided  between 
what  they  called  the  "nation"  on  the  one  hand  and  the 
states  on  the  other;  that  is,  each  was  sovereign  within  the 
sphere  marked  out  for  it  by  the  constitution  of  the  union. 
This  theory  of  a  dual  sovereignty  was  vigorously  combated 
by  the  Southern  statesman  John  C.  Calhoun,  in  his  "Dis- 
quisition on  Government,"  where,  as  already  stated,  he 
enunciated  the  doctrine  that  sovereignty  was  a  unit,  in- 
capable of  division,  and  that  it  existed  unimpaired  and  in 
its  entirety  in  the  separate  states  composing  the  union. 
The  question,  so  far  as  the  United  States  was  concerned, 
was  finally  settled  by  the  armed  conflict  of  1861-1865,  but 
there  is  still  a  difference  of  opinion  among  able  writers  as 
to  whether  the  power  which  is  left  to  the  states  is  sover- 
eignty or  mere  local  autonomy.^ 

Among  foreign  publicists  we  find  the  same  diversity  of 
opinion  regarding  the  divisibility  of  sovereignty.  The  Eng- 
lish historian  Freeman  asserts  that  "the  complete  division 


'For  further  discussion  of  this  subject,  see  Merriam,  "American  Political 
Theories,"  ch.  7,  also  his  "History  of  Sovereignty,"  pp.  163  S.;  Willoughby, 
"American  Constitutional  System,"  ch.  2;  McLaughlin,  "American  Historical  Re- 
view,"  April,  1900;  see  also  a  good  recent  discussion  in  the  "Zeitschrift  fiir  die  ge- 
samte  Staatswissenschaften,"  1909,  pp.  77  fF.  Mr.  A.  L.  Lowell  asserts  emphatically 
that  "there  can  exist  within  the  same  territory  two  sovereigns  issuing  commands  to 
the  same  subjects  touching  different  matters."  "Essays  on  Government,"  p.  219. 
James  Bryce  maintains  that  legal  sovereignty  may  be  "divided  between  coordinate 
authorities."     "Studies  in  History  and  Jurisprudence,"  vol.  II,  p.  508. 

'  "Theory  of  the  National  Existence,"  p.  295.  For  a  somewhat  detailed  con- 
sideration of  the  question  of  the  divisibility  of  sovereignty,  see  Bliss,  "  On  Sov- 
ereignty "  chs.  7-8. 

^  Woodrow  Wilson  attributes  to  the  individual  members  of  the  American  union  the 
character  of  real  states,  although  he  says  their  sphere  is  limited  by  the  presiding  sov- 
ereign powers  of  a  state  superordinated  to  them.  "  Old  Master  and  Other  Essays," 
p.  94.  The  constitution  of  Mexico  (art.  40)  expressly  declares  the  individual  states 
to  be  "sovereign"  in  all  that  concerns  their  internal  affairs. 


THE   INDIVISIBILITY   OF   SOVEREIGNTY  261 

of  sovereignty  we  may  look  upon  as  essential  to  the  absolute 
perfection  of  the  federal  ideal."  ^  The  French  scholars  De 
Tocqueville,  Esmein,  and  Duguit  have  expressed  substan- 
tially the  same  views  ;^  and  many  German  publicists  support 
the  theory  so  far  as  it  relates  to  sovereignty  in  federal  states. 
The  "father "of  the  divisibilitydoctrine  in  Germany  was  the 
noted  scholar  Waitz,  and  among  his  followers  may  be  men- 
tioned the  names  of  Von  Mohl,  Bluntschli,  Brie,  Wester- 
kamp,  Jellinek,  Bornhak,  Schulze,  Ruttiman,  and  others.^ 
After  the  founding  of  the  empire,  however,  and  the  triumph 
of  nationalism  over  particularism,  the  theory  of  a  divided 
sovereignty  found  less  favor  among  the  German  jurists  and 
philosophers,  and  the  unity  theory  has  come  to  have  more 
advocates  than  formerly.*  According  to  the  latter  view, 
sovereignty  in  the  German  Empire  reposes  in  the  totality 
of  the  German  states  regarded  as  a  single  personality 
instead  of  being  divided  between  the  empire,  on  the  one 
hand,  and  the  states  composing  it,  on  the  other.  When 
the  latter  became  members  of  the  empire,  they  gave  up 
their  sovereignty,  receiving  in  exchange,  as  Bismarck  ex- 
pressed it,  a  share  in  the  joint  sovereignty  of  the  empire.^ 
While  the  better  opinion  is  in  favor  of  the  theory  that 
sovereignty  is  a  unit  and  therefore  incapable  of  division, 
there  is  no  reason  why  the  expression  of  the  powers  of 
sovereignty,  its  emanations  or  manifestations,  cannot  be 
divided   and  expressed   through  various  mouthpieces  and 

'  "History  of  Federal  Government,"  p.  4,   see  also  p.  15. 

^Esmein,  "Droit  constitutionnel,"  4th  ed.,  p.  7;  Duguit,  "Droit  constitution- 
nel,"  pp.  134, 141.     See  also  Oppenheim,  "International  Law,"  vol.  I,  p.  134. 

^  For  discussions  of  this  question  see  especially  Brie,  "  Der  Bundesstaat,"  sec.  10; 
Bornhak,  "Preussische  Staatsrecht,"  vol.  I,  pp.  71  ff. ;  and  Merriam,  "History  of 
Sovereignty,"  pp.  204  ff. 

*  Among  the  German  advocates  of  the  unity  theory  may  be  mentioned  Gareis, 
Haenel,  Laband,  Zorn,  Georg  Meyer,  and  Martitz. 

'  Howard,  "The  German  Empire,"  pp.  20,  116.  Seydel,  like  Calhoun  in  Amer- 
ica, maintained  that  the  individual  states  of  the  empire  are  sovereign,  that  they 
are  real  states,  and  that  the  empire  itself  is  no  state.  See  his  "Kommentar  zur' 
Verfassungsurkunde,"  2d  ed.,  pp.  6-ii. 


262  SOVEREIGNTY 

The  Mani-  Carried  out  through  a  variety  of  organs.     Thus,  said  Rou:>- 
of^Soyer-^    seau,  power  may  be  divided,  though  will  never  can  be.     It  is 
eignty        a  unit  and  indivisible.    Those  who  maintain  the  divisibility 
divided       theory,  as  Rousseau  points  out,  really  confuse  sovereignty 
with  its  emanations.^     The  same  Idea  was  expressed  by 
Calhoun,  who  said  with  evident  truth:  "There  is  no  dififi- 
culty  In  understanding  how  powers  appertaining  to  sover- 
eignty may  be  divided  and  the  exercise  of  one  portion  be 
delegated   to   one   set  of  agents   and   another  portion  to 
another,  or  how  sovereignty  may  be  vested  in  one  man, 
in  a  few,  or  In  many.     But  how   sovereignty  itself,  the 
supreme  power,  can  be  divided  ...  it  Is  Impossible   to 
conceive."  " 
Sover-  Applying  this  principle  to  the  so-called  federal  state,  we 

stages  ^°     shall  lind  that  the  sovereign  will  expresses  itself  on  certain 
having  the  subjccts  through  the  medium  of  a  central  government,  and 

Federal  •'  ,  ,  *  ,   .  ,  ,        ,  ^  .      ,        .      ,. 

System  of  ou  ccrtam  Other  subjects  through  the  organs  of  the  indi- 
men7°"  vldual  political  units  composing  the  federation.  But 
there  is  no  partition  of  sovereignty,  no  division  of  the 
supreme  will.  There  is  a  division  by  the  sovereign  Itself 
of  governmental  powers  and  a  distribution  of  them  among 
two  sets  of  organs,  but  no  division  of  the  will  Itself.  To  say 
that  the  component  members  of  a  federal  union  are  partly 
sovereign,    or    sovereign  within    their  particular  spheres, 

'  "Le  Contrat  social,"  bk.  II,  ch.  2. 

^  Works,  vol.  I,  p.  416.  Compare  also  Willoughby  ("  The  American  Constitu- 
tional System,  "  pp.  4-5) :  "  That  there  cannot  be  in  the  same  being  tvfo  wills,  each 
supreme,  is  obvious.  But  though  the  sovereign  will  of  the  state  may  not  be  divided, 
it  may  find  expression  through  several  legislative  mouthpieces,  and  the  execution  of 
the  commands  may  be  delegated  to  a  variety  of  governmental  organs."  Compare 
also  George  Ticknor  Curtis,  who  says  ("History  of  the  Constitution,"  vol.  II,  pp. 
377-379)  •  "It  is  manifest  that  there  cannot  be  two  supreme  powers  in  the  same 
community  if  both  are  to  operate  on  the  same  objects.  But  there  is  nothing  in  the 
nature  of  political  sovereignty  to  prevent  its  powers  from  being  distributed  among 
different  agents  for  different  purposes."  For  similar  views  see  Hurd,  "Theory 
of  our  National  Existence,"  p.  121;  Gareis,  "  Allgemeine  Staatsrecht,"  p.  31;  and 
Funck-Brentano  ("La  Politique,"  p.  68),  who  maintain  that  though  sovereignty 
cannot  be  divided,  \\.%  functions  may  be  and  its  authority  may  be  delegated,  the  forms 
of  delegation  being  as  infinite  as  the  passions  and  human  wills. 


THE   INDIVISIBILITY   OF   SOVEREIGNTY.  263 

is  an  abuse  of  the  term  "sovereignty."  Juristically  it  is 
just  as  logical  to  say  that  a  municipal  corporation  or  a 
religious  society  is  sovereign  within  the  sphere  assigned 
to  it  by  the  law. 

"There  is  no  middle  ground,"  says  an  able  writer, 
speaking  of  the  nature  of  sovereignty  in  the  American 
federal  system;  "sovereignty  is  indivisible,  and  either 
the  central  power  is  sovereign  and  the  individual  mem- 
bers not,  or  vice  versa.  They  are  not  states,  for  that 
would  be  imperia  in  imperio,  but  they  are  administrative 
districts  with  larger  powers  of  autonomy  than  are  given 
others  —  an  autonomy  which  amounts  to  practical  local 
self-government  in  matters  not  of  general  concern."  ^ 
Legally  this  is  an  absolutely  correct  statement  of  the 
status  of  the  so-called  states  of  the  American  federal 
republic.  That  power  and  that  power  alone  is  sovereign 
in  a  federal  union  which  can  in  the  last  analysis  determine 
the  competence  of  the  central  authority  and  that  of  the 
component  states,  and  which  can  redistribute  the  powers  of 
government  between  them  in  such  a  way  as  to  enlarge  or 
curtail  the  sphere  of  either.  That  power  is  not  in  the  cen- 
tral government  nor  in  the  states;  it  is  over  and  above 
both,  and  wherever  it  is,  there  is  the  sovereign. 

The  task  of  "running  the  sovereign  to  cover,"  especially 
in  the  "composite"  states  of  to-day,  is  not  always  easy,  and 
when  discovered  it  is  not  always  recognized.  It  is  ex- 
tremely difficult  to  place  one's  finger  on  the  exact  spot 
where  it  reposes.  The  constitutional  lawyer  and  the  lay- 
man do  not  always  travel  the  same  path  in  the  search  for 
it,  and  they  do  not  always  find  it  in  the  same  place.  But 
it  is  always  present  somewhere  in  the  state;  and  if  in  the 
search  we  push  our  inquiry  until  we  find  that  authority 
which  has  the  power  to  say  the  last  word  in  all  matters  of 
authority,  we  shall  find  ourselves  in  the  presence  of  the 
sovereign. 

'  Willoughby,  "  The  Nature  of  the  State,"  p.  244. 


264  SOVEREIGNTY 

V.     INTERNAL   VERSUS   EXTERNAL  SOVEREIGNTY^ 

The  fact  that  the  state  has  an  international  personahty 
and  exerts  a  will  in  relation  to  other  states  has  given  rise 
to  the  common  distinction  between  external  and  internal 
sovereignty,  between  sovereignty  as  a  concept  of  inter- 
national law  and  sovereignty  as  a  concept  of  constitutional 
law.  Those  who  recognize  the  distinction  conceive  internal 
sovereignty  to  mean  the  supremacy  of  the  state  within  its 
own  territory  as  over  against  the  wills  of  all  persons  or 
associations  of  persons  therein ;  while  external  sovereignty 
is  conceived  to  be  the  supremacy  of  the  state  as  against 
all  foreign  wills,  whether  of  persons  or  states.  The  one 
has  reference  to  the  exclusive  power  of  the  state  viewed 
from  within,  the  other  to  the  immunity  of  the  state  from 
outside  control.  Many  writers,  especially  those  on  inter- 
national law,  maintain  that  the  two  sovereignties  are 
separate  and  distinct,  and  that  the  state  may  possess  one 
without  the  other;  that  is,  the  state  may  be  internally 
sovereign  without  being  sovereign  in  its  external  relations. 
The  logical  conclusion  is  that  states  may  be  sovereign  as 
to  certain  things  and  non-sovereign  as  to  others;  in  other 
words,  that  sovereignty  is  divisible  and  admits  of  differ- 
ent degrees  of  perfection  —  a  conclusion  which  we  have 
already  shown  to  be  untenable.^  Georg  Meyer,  a  noted 
German  scholar,  distinguishes  between  constitutional  sov- 
ereignty and  international  sovereignty;  the  former  being  the 
power  of  "unrestrained  political  action"  as  regards  internal 

'  On  the  distinction  between  external  and  internal  sovereignty,  see  Wheaton, 
"International  Law,"  ch.  2 ;  Oppenheim,  "International  Law,"  vol.  I,  part  I,  ch.  i ; 
Hall,  "International  Law,"  ch.  2,  sec.  10;  Duguit,  "Droit  constitutionnel," 
sec.  28;  Merignhac,  "  Traits  de  Droit  international  public,"  vol.  I,  pp.  162  ff. ;  Pradier- 
Fodere,  "Traitede  Droit  international  public,"  vol.  I,  p.  160;  Despagnet,  "Droit 
international  public,"  3d  ed.,  p.  82;  Merriam,  "History  of  Sovereignty,"  p.  216. 

'  The  German  jurists  Laband,  Jellinek,  Rehm,  and  the  French  writer  Moreau 
all  agree  in  holding  that  sovereignty  is  not  divisible  into  external  and  internal 
"branches,"  to  use  Wheaton's  term,  and  that  a  state  cannot  possess  the  one  without 
the  other.     See  Duguit,  "Droit  constitutionnel,"  p.  114. 


IS   SOVEREIGNTY   AN   ESSENTIAL   ELEMENT?         265 

affairs,  the  latter  being  independence  of  foreign  control/ 
But  if  a  state  possesses  the  power  of  unrestrained  po-  The  Dis- 
litical  activity  in  internal  affairs,  it  cannot  at  the  same  unsound" 
time  be  dependent  upon  an  outside  will.  That  would,  as 
Jellinek  remarks,  be  a  contradictio  in  adjecto.^  The  dis- 
tinction between  international  or  external  sovereignty  on 
the  one  hand,  and  internal  or  constitutional  sovereignty 
on  the  other,  is,  according  to  strict  logic,  unsound.  The 
former  is  but  the  outward  reflex  action  of  the  highest 
power  in  the  state,  the  manifestation  of  its  supremacy  in  a 
particular  direction.  In  other  words,  external  and  internal 
sovereignty  are  simply  different  aspects  or  manifestations 
of  one  and  the  same  thing. ^  One  may  be  considered  the 
positive  side  of  sovereignty,  the  other  its  negative  side. 
Or,  to  state  it  in  a  different  form,  one  is  the  supremacy  of 
the  state  viewed  from  the  exterior,  the  other  the  same  su- 
premacy looked  at  from  within. 

VI.     IS  SOVEREIGNTY  AN  ESSENTIAL  ELEMENT  OF  THE  STATE? 

Many  able  writers,   particularly  among  the  Germans,  The  Right 
maintain  that  while  sovereignty  is  a    common  attribute  the^^eaT'^' 
of  the  state  it  is  not  an  essential  constituent;     in  other  Test  of 
words,  that  states  and  sovereign  states  are  not  necessarily  Existence 
identical  concepts.     Sovereignty,  they  assert,  may  or  may 
not  be  present  in  the  state;   it  may  constitute  the  basis  of 
recognition  in  international  law,  but  is  in  itself  an  insuffi- 
cient test  of  statehood.^     They  distinguish  between  sover- 
eignty {Staatshoheit  or  Hoheitsrecht) ,  the  power  of  the  state 
to  determine  the  limits  of  its  own  competence,  and  state 

*  "Lehrbuch  des  deutschen  Staatsrechts,"  sec.  6. 

*  "Staatenverbindungen,"  p.  23. 

'  Compare  Oppenheim,  "International  Law,"  vol.  I,  p.  171.  See  also  Esmein 
("Droit  constitutionnel,"  p.  i),  who  says  sovereignty  has  two  "faces,"  internal 
sovereignty,  or  the  right  to  command  all  citizens  in  the  territory  of  the  state ;  and 
external  sovereignty,  or  the  right  of  representing  the  nation  and  entering  into 
relations  with  other  nations. 

*  Cf.  Howard,  "  The  German  Empire,"  p.  20,  and  the  authorities  there  cited. 


266  SOVEREIGNTY 

power  (Herrschaft) ,  or  the  right  to  rule,  which  is  possessed 
by  every  state,  while  only  certain  states  possess  the  former. 
Communities,  like  the  component  members  of  federal 
unions,  for  example,  which  were  once  independent  and 
which  have  never  surrendered  their  essential  marks  of 
existence,  but  have  only  delegated  certain  powers  of  gov- 
ernment to  a  central  authority,  are  cited  as  examples  of 
states  without  sovereignty.  In  becoming  parts  of  a  new 
union  they  have  ceased  to  be  sovereign  but  have  not 
ceased  to  be  states.^  Thus  Jellinek  maintains  that  a 
community  which  exercises  political  power  according  to  its 
own  right,  that  is,  power  which  is  original  rather  than  de- 
rived and  which  can  lay  down  binding  legal  norms,  is  in  a 
juristic  sense  a  state,  whether  it  possesses  full  sovereignty 
or  not.^  They  are,  he  says,  public  law  corporations,  have 
their  own  constitutions,  their  own  independent  spheres 
of  action,  and  retain  their  magisterial  rights  (Hoheits- 
rechten) /'  Other  authorities  who  hold  the  view  that  sov- 
ereignty is  not  a  vital  principle  in  the  constitution  of  the 
state  are  Laband,^  Rehm,^  Georg  Meyer,®  von  Mohl,  Le 
Fur  und  Posener,^  Hermann  Schulze,^  Brie,®  Anschiitz, 
Bluntschli,^"  and  the  French  writers  Michoud  "  and  Lapra- 
delle.*^     According  to  these  writers  the  distinguishing  char- 

*  Cf.  Merriam,  "History  of  Sovereignty,"  p.  200. 

*  "Staatenverbindungen,"  p.  40.  '  Ibid.,  p.  49. 

^  "Staatsrecht  cles  deutschen  Reiches,"  vol.  I,  pp.  107-108.  For  a  searching 
criticism  of  Laband's  conception,  see  Burgess's  review  of  his  theory  in  the  "  PoHtical 
Science  Quarterly,"  vol.  Ill,  pp.  123  et  seq. 

*  "Allgemeine  Staatslehre,"  in  Marquardsen's  "Handbuch,"  Einleitungsband, 
sec.  16. 

'"Lehrbuch  des  deutschen  Staatsrechts,"  6th  ed.,  p.  7.  "Sovereignty,"  says 
Meyer,  "  is  no  essential  constituent  of  the  state.  There  are  sovereign  and  non- 
sovereign  states." 

'  "  Bundesstaat  und  Staatenbund,"  p.  2.        *  "  Deutsches  Staatsrecht,"  sec.  16. 

^  "  Theorie  der  Staatenverbindungen,"  p.  9.  "  The  members  of  a  federal  union," 
observes  Brie,  "are  really  states  but  not  sovereign  states,"  p.  112. 

'"  "  Volkerrecht,"  sec.  79. 

"  "Theorie  de  la  Personnalite  morale,"  p.  239. 

'^  "La  Question  fmlandaise,"  "Revue  de  Droit  public,"  1901. 


IS  SOVEREIGNTY   AN   ESSENTIAL   ELEMENT?  267 

acteristic  of  the  state  is,  as  has  been  intimated,  not  sov- 
ereignty, not  the  original  power  of  the  state  to  deter- 
mine its  own  competence,  but  the  power  to  command 
and  compel  obedience.  A  community  which  rules  and 
governs  in  its  own  right,  says  Jellinek,  is  a  state,  and 
non-sovereign  as  well  as  sovereign  communities  may 
do  that/  There  were  many  communities  during  the 
Middle  Ages,  he  says,  which  were  tributary  or  vassal,  like 
the  great  feudal  seignories  of  France,  yet  were  recognized 
as  states. 

But  if  the  possession  of  political  power  (Herrschafi)  is  a  Sover- 
sound  test  of  statehood,  it  is  difficult  to  see  why  provinces  an  eTsch- 
possessing  large  autonomy,  or  self-governing  colonies  like  tifi  Con- 
Australia,  Canada,  or  New  Zealand,  do  not  equally  possess  the  state 
the  quality  of  states.^      Whether  sovereignty  is  an  essen- 
tial characteristic   of  the  state  depends   mainly  upon  our 
notion  of  the  thing  itself  and  our  conception  of  the  nature 
of  the  state.     If  we  accept  the  theory  of  a  divided   sover- 
eignty, or  the  distinction  between  perfect  and  imperfect 
states,  we  need  have  no  trouble  in  accepting  the  doctrine 
that  a  communit}^  in  which  sovereignty  is   partly   lacking 
may  nevertheless  be  considered  as  a  state.      But  if  we  ad- 
here to  the  test  laid  down  elsewhere  in  this  work,  no  non- 
sovereign  community,  however   great  its  local  autonomy, 
is  entitled  to  be  treated  as  a  state.      We  agree  with   Zorn 
and  Burgess  that  sovereignty  is  not  only  an  essential   ele- 
ment, but  the  first  and  highest  conceivable  mark  of  the 

'  "  Staatenverbindungcn,"  pp.  30,  37.  For  a  criticism  of  Jellinek's  views  on  this 
point,  see  Merignhac,  "Traite  de  Droit  international  public,"  vol.  I,  pp.  178-183. 

^  Cf.  Duguit,  op.  cit.,  pp.  137,  140;  also  Gierke  in  "  Schmollers  Jahrbuch  " 
for  1883,  p.  1137;  Merignhac,  op.  cit.,  vol.  I,  pp.  173  et  scq.;  and  Burgess, 
"  Political  Science  Quarterly,"  vol.  Ill,  p.  123.  Jellinek,  Laband,  and  Rehm  argue 
that  the  members  of  federal  states  differ  from  self-governing  colonies  in  that  their 
power  is  original  and  underived,  that  they  have  the  power  of  self-organization,  in- 
herent autonomy,  etc.,  while  the  powers  of  colonies  are  merely  delegated  and  hence  the 
latter  cannot  be  considered  as  states.  This  distinction  is  good  so  far  as  the  members 
of  some  federal  states  are  concerned,  but  how  about  those  like  the  Canadian  province 
which  have  granted  rather  than  reserved  rights  ? 


268  SOVEREIGNTY 

state  ;^  and  with  Willoughby  that  it  is  the  one  characteris- 
tic which  serves  to  distinguish  the  state  in  toto  genere  from 
all  other  human  associations.^  There  are  many  communi- 
ties, among  them  the  constituent  members  of  some  federal 
unions  and  the  great  English  self-governing  colonies, 
which  have  an  autonomy  amounting  almost  to  independ- 
ence in  the  management  of  their  local  affairs,  yet  they  are 
not  free  to  determine  their  own  competence  or  the  limits 
of  their  own  autonomy.  It  would  seem,  therefore,  more 
accurate  to  treat  such  communities  not  as  states,  but  as 
parts  of  states,  possessing  some,  but  not  all,  of  the  marks 
of  real  states. 

VII.  Austin's  theory  of  sovereignty 

A  conception  of  sovereignty  which  has  been  the  subject  of 
wide  discussion  and  which  has  exerted  an  important  influ- 
ence upon  the  legal  thought  of  the  last  half  century  is  that 
enunciated  by  the  analytical  school  of  jurists  of  which 
John  Austin  was  the  most  conspicuous  representative. 
Austin's  views  were  based  largely  on  the  teachings  of 
Hobbes  and  Bentham,  and  were  first  made  public  in  his 
"Lectures  on  Jurisprudence,"  published  in  1832.  His 
theory  was  conditioned  mainly  upon  his  view  of  the  na- 
ture of  law,  which  he  defined  in  a  general  way  as  a  "com- 
mand given  by  superior  to  an  inferior."  ^  "If  a  determi- 
nate human  superior,'  he  declared,  "not  in  a  habit  of 
obedience  to  a  like  superior  receive  habitual  obedience  from 
the  bulk  of  a  given  society,  that  determinate  superior  is 
sovereign  in  that  society,  and  the  society  (including  the 
superior)  is  a  society  poHtical  and  independent."       "Fur- 

*  "  Deutsches  Staatsrecht,"  vol.  I,  sec.  54 ;  Burgess,  "  Political  Science  Quarterly," 
vol.  VII,  p.  128. 

*"The  American  Constitutional  System,"  pp.  4-5.  Cf.  Borel,  "Etude  sur  la 
Souverainete,"  p.  103,  who  holds  that  members  of  federal  states  are  not  themselves 
states  in  the  juridical  sense  because  sovereignty  is  an  essential  characteristic  of 
statehood.     See  also  Le  Fur,  "  Etat  federal,"  pp.  680  et  seq. 

'  Lectures  on  Jurisprudence,"  lect.  VI. 


AUSTIN'S   THEORY   OF   SOVEREIGNTY  269 

thermore,"  he  continued,  "every  positive  law,  or  every 
law  simply  and  strictly  so-called,  is  set,  directly  or  circui- 
tously,  by  a  sovereign  person  or  body  to  a  member  or 
members  of  the  independent  political  society  wherein  that 
person  or  body  is  sovereign  or  supreme." 

The  test  of  sovereignty,  then,  according  to  Austin,  is  ha- 
bitual obedience  to  a  superior  who  owes  no  obedience  to  a 
like  superior  —  not  obedience  by  all  the  inhabitants,  but 
by  the  "bulk"  of  the  members  of  the  community.  This 
superior  cannot  be  the  general  will,  as  Rousseau  taught,  nor 
the  people  in  the  mass,  nor  the  electorate,  nor  some  abstrac- 
tion like  public  opinion,  moral  sentiment,  the  common  rea- 
son, the  will  of  God,  and  the  like;  but  it  must  be  some 
"determinate"  person  or  authority  which  is  itself  subject 
to  no  legal  restraints. 

Austin's  theory  that  sovereignty  must  reside  in  a  determi-  Criticism 
nate  body  has  found  many  critics  among  the  historical  ju-  Theory'"  ^ 
rists  like  Maine,  Clark,  Sidgwick,  and  others.  In  the  first 
place,  the  theory  is  criticised  on  the  ground  that  it  is  incon- 
sistent with  the  present-day  idea  of  popular  sovereignty 
—  is  in  fact  the  complete  antithesis  of  Rousseau's  doctrine 
that  sovereignty  is  the  general  will,  a  doctrine  which 
lies  at  the  basis  of  the  modern  democratic  state.  Again,  it 
ignores  the  power  of  public  opinion,  and  takes  no  account 
of  what  we  have  described  as  political  sovereignty.  Thus, 
says  Sir  Henry  Maine,  it  is  a  historic  fact  that  sovereignty 
has  repeatedly  been  for  a  time  in  the  hands  of  a  number  of 
persons  not  determinate,  and,  he  adds,  "it  is  asserted  by 
some  writers  that  this  is  true  of  the  abiding  place  of  sover- 
eignty in  the  republic  of  the  United  States."  *  Furthermore, 
Austin's  notion  of  law  as  a  command  emanating  from  a 

*  Compare  Dewey,  "Austin's  Theory  of  Sovereignty,"  "Political  Science  Quar- 
terly, "  vol.  IX ;  Maine,  "  Early  History  of  Institutions,"  lect.  XIII.  But  apparently 
Austin  v?as  thinking  only  of  legal  sovereignty,  which  must  from  the  nature  of  the 
case  be  located  in  a  determinate  authority,  and  not  of  political  sovereignty,  which 
may  abide  in  an  indeterminate  number  of  persons. 


270  SOVEREIGNTY 

determinate  superior  —  a  conception  which  lies  at  the  basis 
of  his  theory  of  sovereignty  —  has  been  criticised  by  the 
historical  jurists  on  the  ground  that  it  ignores  the  great  body 
of  customary  law  which  has  grown  up  through  usage  and 
interpretation,  and  which  never  had  its  source  in  the  will 
of  a  determinate  superior;  that  it  errs  in  treating  all 
law  as  being  merely  command;  and  that  it  exagger- 
ates the  single  element  of  force  to  the  neglect  of  obvious 
historical  facts  with  which  Austin  could  not  have  been 
unacquainted.^ 

Austin  apparently  foresaw  the  objections  that  would  be 
urged  against  his  definition  of  law,  and  he  sought  to  antici- 
pate them  by  one  of  those  legal  fictions  common  among 
lawyers,  namely,  by  extending  the  scope  of  his  definition  to 
include  customary  law.  Custom,  he  argued,  is  law  only 
when  sanctioned  by  the  sovereign,  and  what  the  sovereign 
permits  he  commands;  hence,  customary  law  is  a  legal 
command,  and  he  who  permits  it  to  continue  as  law  is  the 
sovereign.  But,  like  most  legal  fictions,  this  is  rather 
unsatisfactory,  if  indeed  it  does  not  prove  too  much  for 
his  doctrine.^ 

Another  objection  sometimes  urged  against  the  Austinian 
theory  is  the  absolutism  which  it  attributes  to  sovereignty. 
Like  Hobbes,  Austin    held  that  the  fountain  and  source 

^  See  on  this  point  Maine,  "  Early  History  of  Institutions,"  p.  352  ;  Clark,  "  Practi- 
cal Jurisprudence :  a  Commentary  on  Austin,"  pp.  166  ff. ;  Sidgwick,  "  Elements  of 
Politics,"  Appendix  A;  Markby,  "Elements  of  Law,"  p.  24;  Lowell,  "Essays  on 
Government,"  ch.  5  (chapter  on  "Sovereignty");  W^ilson,  "An  Old  Master  and 
Other  Essays,"  ch.  5;  Ritchie,  in  the  "Annals  of  the  American  Academy  of  Political 
and  Social  Science,"  vol  I,  p.  387;  T.  H.  Green,  "  Political  Obligation, "  pp.  93-120; 
Lightwood,  "  Nature  of  Positive  Law,"  ch.  13;  Merriam,  "  History  of  Sovereignty," 

pp.  145  ff- 

^  Thus,  says  Dewey  {op.  cit.,  p.  50),  if  the  doctrine  be  true  that  what  the  sovereign 
does  not  forbid  he  enjoins,  the  whole  social  activity  of  mankind  would  have  to  be 
conceived  of  as  carried  on  in  obedience  to  the  commands  of  a  determinate  authority, 
which  manifestly  would  lead  to  a  reductio  ad  absiirdum.  Compare  also  Ritchie, 
{op.  cit.,  p.  388),  who  says,  "to  call  a  custom  a  command  of  parliament  because 
permitted,  is  the  same  as  saying  that  the  refusal  of  the  king  of  Persia  to  forbid  the 
observance  of  the  Sabbath  is  the  equivalent  of  commanding  the  observance  of  it." 


AUSTIN'S  THEORY   OF   SOVEREIGNTY  271 

of  law  could  not  be  limited  by  any  higher  law,  and  hence 
sovereignty  involved  legal  despotism.  There  cannot,  he 
said,  be  a  hierarchy  of  supremacies  nor  a  coordination  of 
creators  nor  a  series  of  sovereigns  ascending  to  infinity. 
He  frankly  admitted  that  there  was  no  escape  from  the 
conclusion  that  sovereignty  is  legally  unrestrainable,  and 
hence  the  sovereign  is,  legally  speaking,  a  despot,  however 
benevolent  he  may  be  in  fact.  But  he  pointed  out,  what 
is  obviously  true,  that  it  does  not  follow  that  because 
the  sovereign  is  unlimited  in  its  powers  the  government 
through  which  it  expresses  itself  is  necessarily  subject  to 
no  restriction. 

Of  the  merits  of  Austin's  theory  we  venture  the  opinion 
that  his  chief  error  consisted  in  unduly  emphasizing  the 
purely  legal  aspects  of  sovereignty,  and  in  overlooking  the 
forces  and  influences  which  lie  back  of  the  formal  law  — 
a  very  natural  mistake  for  a  lawyer  to  make.  It  may  also 
be  said  that  his  theory  was  probably  inapplicable  to  all 
states  of  society,  such,  for  example,  as  Maine  described  in 
his  work  on  the  "  Early  History  of  Institutions."^  But  as  a 
conception  of  the  strict  legal  nature  of  sovereignty,  Austin's 
theory  is,  on  the  whole,  clear  and  logical,  and  much  of  the 
criticism  directed  against  it  has  been  founded  on  misap- 
prehension and  misconception.^ 

The  nature  of  sovereignty  has  not  always  been  understood, 
nor  is  it  now.  It  has  often  been  the  subject  of  much  loose 
thinking  by  statesmen  and  of  dogmatism  by  political  writers.'^ 
Powerful  constitutional  controversies  concerning  its  location 
have  shaken  more  than  one  state  in  the  past  and  have  some- 
times even  led  to  civil  commotion.      While  there  is  now  a 

'  See  especially  ch.  13. 

^  For  a  discussion  and  criticism  of  Austin's  views  see  Jethro  Brown,  "The 
Austinian  Theory  of  Law,"  especially  chs.  3  and  5. 

^Compare  on  this  point  Jellinek,  "Staatenverbindungen,"  p.  7.  "No  word," 
says  Lieber,  "has  claimed  more  consideration  within  the  last  century  and  a  half, 
yet  its  meaning  has  all  the  time  been  changing  and  has  hardly  ever  been  used  with 
any  definiteness." 


272  SOVEREIGNTY 

substantial  consensus  of  opinion  among  the  best  political 
writers  concerning  its  fundamental  characteristics,  there 
are  still  differences  of  opinion  regarding  its  place  of  abode 
in  some  of  the  complex  states  of  the  present  day/ 

'  For  a  discussion  of  the  theories  concerning  the  location  of  sovereignty  see 
Bliss,  "On  Sovereignty,"  ch.  6.  It  would  be  difficult,  for  example,  to  say  where 
sovereignty  resides  in  the  United  States,  whether  in  the  people  of  the  country  at 
large  or  whether  in  the  people  of  three  fourths  of  the  states,  or  either.  The  con- 
stitution, as  a  matter  of  fact,  may  be  amended  and  ratified  according  to  two  differ- 
ent processes.  So  far,  all  amendments  have  been  proposed  by  Congress  and  ratified 
by  the  state  legislatures,  so  that  neither  the  people  of  the  United  States,  nor  the 
people  of  the  states,  have,  in  fact,  participated  in  the  exercise  of  the  sovereign 
power. 


CHAPTER   IX 

THEORIES   OF  STATE   FUNCTIONS 

Suggested  Readings:  Adams,  "Relation  of  the  State  to  Indus- 
trial Action " ;  Amos,, "Science  of  Politics,"  ch.  lo;  Beudant,  "Le 
Droit  individuel  et  I'Etat,"  chs.  1,4;  Bluntschli,  "  Allgemeine  Staats- 
lehre,"  bk.  V,  chs.  1-4;  also  his  "Allgemeines  Staatsrecht,"  bk.  VI, 
ch.  i;  BoRNHAK,  "Allegemeine  Staatslehre,"  pt.  I,  sec.  Ill;  Burgess, 
"Political  Science  and  Constitutional  Law,"  vol.  I,  bk.  II,  ch.  4; 
Cunningham,  "Economics  and  Politics,"  ch.  4;  Donisthorpe,  "Indi- 
vidualism," chs.  3,9,  10;  Dupont-White,  L'Individuel  et  I'Etat"; 
Flint,  "  Socialism,"  chs.  1-3;  Graham,  "Socialism,"  chs.  5-9;  Green, 
"Political  Obligations,"  pp.  142-243;  Hadley,  "Economics,"  ch.  i; 
Held,  "System  des  Verfassungsrechts,"  ch.  10;  Holtzendorff, 
"Principien  der  Politik,"  bk.  Ill,  chs.  7-1 1;  Humboldt,  "Sphere  and 
Duties  of  the  State"  (trans,  by  Coulthard) ;  Huxley,  "Administrative 
Nihilism,"  in  his  "  Critiques  and  Addresses,"  ch.  i ;  Jellinek,  "  Recht 
des  modernen  Staates,"  bk.  II,  ch.  8;  Jourdan,  "Role  de  I'Etat  dans 
rOrdre  economique, "  Introduction;  Kirkup,  "History  of  Socialism," 
Introduction  and  chs.  9-1 1;  Lacy,  "Liberty  and  Law,"  chs.  4,  5,  6, 
8;  Laveleye,  "Le  Gouvernement  dans  la  Democratie,"  vol.  I,  bk.  I, 
chs.  7,  8,  10,  II,  12;  Laboulaye,  "The  Modern  State,"  ch.  i;  Leroy- 
Beaulieu,  "L'Etat  moderne  et  ses  Limites,"  chs.  i,  2,  5;  Lieber, 
"Political  Ethics,"  vol.  I,  bk.  II,  ch.  5;  Lilly,  "First  Principles  of 
Politics,"  chs.  3,  4;  Mackay,  "A  Plea  for  Liberty,"  chs.  i,  2,  4; 
McKechnie,  "The  State  and  the  Individual,"  chs.  3,  4,  8,  12,  13; 
Michel,  'L'lde'e  de  I'Etat,"  Introduction,  also  bk.  Ill;  Mill,  "Politi- 
cal Economy,"  vol.  II,  bk.  V,  chs.  i,  8,  9;  also  his  "Essay  on  Liberty"; 
Montague,  "Limits  of  Individual  Liberty,"  ch.  6;  Pollock,  "History 
of  the  Science  of  Politics,"  ch.  4;  Posado,  "Tratado  de  Derecho 
Politico,"  bk.  V,  chs.  1-3;  also  bk.  VI;  Rae,  "Contemporary 
Socialism,"  ch.  11;  Ritchie,  "Principles  of  State  Interference,"  chs. 
2,3;  BruceSmith," Liberty  and  Liberalism,"  chs.  9  and  10;  Spencer, 
essays  on  the  "Duty  of  the  State,"  "Limits  of  State  Duty,"  "Poor 
Laws,"  "Education,"  "Sanitary  Supervision,"  "Currency,"  "The 
Coming  Slavery,"  "Sins  of  Legislators,"  and  "The  Great  Political 
Superstition,"  collected  and  published  under  the  title  "Social  Statics 
and  Man  versus  the  State";  Villey,  "Role  de  I'Etat  dans  I'Ordre 
economique,"  Introduction;  Woolsey,  "Pohtical  Science,"  vol.  I,  pt. 
II,  chs.  4  and  5;  Zacharia,  "  Vierzig  Bticher  vom  Staate,"  bk.  V. 
POL.  SCI.  —  i8  273 


274 


THEORIES   OF   STATE   FUNCTIONS 


The  View 
that  the 
State  is  a 
Necessary 
Evil 


Function 
only  to 
Restrain 


I.    THE   INDIVIDUALISTIC   OR   LAISSEZ-FAIRE  THEORY 

The  doctrines  concerning  the  sphere  of  the  state,  if  we 
exclude  those  of  the  anarchists,  who  profess  to  beHeve 
that  the  state  should  be  done  away  with  entirely,  may  be 
roughly  grouped  into  three  classes,  which  we  may  desig- 
nate as  the  individualistic  theory,  the  socialistic  theory, 
and  the  compromise  theory. 

The  individualist,  unlike  the  anarchist,  considers  the  state 
to  be  a  necessity,  though  he  is  pretty  nearly  at  one  with  the 
anarchist  in  regarding  it  as  essentially  an  evil,  and  hence  its 
sphere  of  activity  should  be  restricted  to  the  narrowest 
possible  limits,  consistent  with  the  maintenance  of  peace,  or- 
der, and  security.  The  individualistic  doctrine  regards  all 
restraint  qua  restraint  as  an  evil  and  every  extension  of  the 
power  of  the  state  as  so  much  taken  from  the  domain  of 
individual  liberty.  It  holds  that  the  state  is  a  necessity 
simply  because  of  the  inherent  egoism  and  ignorance  of  man, 
which  lead  him  to  disregard  the  rights  of  his  fellow  men 
for  his  own  selfish  purposes.  A  noted  Frenchman,  Jules 
Simon,  expressed  the  individualistic  idea  in  extreme  form 
when  he  said  the  state  ought  to  strive  to  make  itself  useless 
and  prepare  for  its  own  demise.^  The  same  idea  was  ex- 
pressed by  the  historian  Freeman,  in  language  which  has  a 
decided  anarchistic  ring,  when  he  remarked  that  "the  ideal 
form  of  government  is  no  government  at  all ;  the'existence  of 
government  in  any  shape  is  a  sign  of  man's  imperfection."  ^ 
The  state  exists,  argue  the  individualists,  merely  because 
crime  exists,  and  its  principal  function,  therefore,  is  to 
restrain,    not   to  direct  and   promote.^     When    the  state 


'  Quoted  by  Laveleye  in  his  "  Le  Gouvernement  dans  la  Democratic,"  vol.  I,  p.  24. 

^  Essays,  p.  353. 

^  "Imaginez  en  effel  une  politique  parfaite,^'  says  Janet,  "un  gouvernement 
parfait,  des  lots  par/aits,  vous  supposez  par  la-meme  des  hommes  parfaits.  Mais 
alors  la  politique  ne  serait  plus  autre  chose  que  le  gouvernement  litre  de  chaque 
homme  par  soi-meme;  en  d'autres  terms,  elle  cesserait  d'etre.  Et  cependant,  c'est  la 
sa  Jin  et  son  ideal.      L'objei  du  gouvernement   est  de  preparer  insensiblement  les 


THE   LAISSEZ-FAIRE   THEORY  275 

undertakes  to  own  and  operate  agencies  for  transporting 
freight  and  passengers;  when  it  undertakes  to  carry  parcels 
for  private  individuals ;  send  telegrams ;  subsidize  theaters 
and  give  concerts;  maintain  libraries,  museums,  art  gal- 
leries, hospitals,  zoological  gardens,  parks,  playgrounds,  bath 
and  wash  houses;  erect  dwellings  for  the  poor;  provide 
schools  and  colleges  for  the  education  of  the  young;  and 
send  out  scientific  expeditions, — it  not  only  undertakes  to 
do  what  is  not  necessary  for  the  protection  of  the  individ- 
ual, which  is  the  only  excuse  for  the  existence  of  govern- 
ment, but  it  is  encroaching  upon  the  domain  of  private 
enterprise  or  otherwise  interfering  with  the  liberty  of  the 
individual.  The  individualists  therefore  condemn  public 
education;  sanitary,  vaccination,  and  quarantine  laws; 
laws  regulating  the  conduct  of  trade  and  industry;  pure 
food  laws;  and  indeed  all  legislation  the  effect  of  which  is  to 
impose  restrictions  upon  industry  or  business  or  to  interfere 
with  the  social  habits  of  individuals.  In  short,  its  sole 
function  in  regard  to  industry  is  to  leave  it  alone/  The 
modern  state  attempts  to  do  entirely  too  many  things, 
say  the  individualists.  '' Ne  pas  trop  gouverner;"  "laissez 
/aire,  laissez  passer,"  expresses  their  conception  of  its 
legitimate  duty.  It  should  be  nothing  more  than  a  police 
organization  to  enforce  contracts,  keep  the  peace,  and 
punish  crime;  and  when  this  is  done,  its  functions  are 
exhausted.^ 

hommes  a  cet  etat  parfait  de  societe,  ou  les  lois  et  le  gouvernement  lui-meme  devien- 
draient  inutiles."     "Histoire  de  la  Science  politique,"  vol.  I,  p.  c. 

'  Donisthorpe,  "Individualism,"  p.  38;  Michel,  "L'Idee  de  I'Etat,"  p.  630. 
"It  cannot  be  too  carefully  remembered,"  declares  Bruce  Smith  ("Liberty  and 
Liberalism,"  p.  252),  an  ardent  individualist,  'that  almost  every  clause  of  an  act  of 
parliament,  if  it  has  force  and  effect  at  all,  takes  away  liberty  from  somebody  because 
it  must  of  necessity  speak  of  something  which  shall  or  shall  not  be  done  where 
before  it  was  optional." 

^  "  Individualists, "  said  the  late  Professor  Huxley,  in  his  essay  on  "  Administrative 
Nihilism,-'  "condemn  all  sanitary  legislation,  all  attempts  on  the  part  of  the  state  to 
prevent  adulteration,  or  to  regulate  injurious  trades;  all  legislative  interference  with 
anything  that  bears  directly  or  indirectly  on  commerce,  such  as  shipping  harbors, 


276 


THEORIES   OF   STATE   FUNCTIONS 


Origin  and 
Develop- 
ment of 
the  Lais- 
sez-faire 
School  of 
Thought 


Individualism  as  a  political  doctrine  had  its  origin  in 
the  latter  part  of  the  eighteenth  century  as  a  reaction 
against  the  evils  of  overgovernment  in  Europe.  It  was 
one  of  the  leading  tenets  of  the  physiocratic  school  of 
economists  that  the  state  ought  not  to  interfere  with  the 
economic  activities  of  the  people  by  prescribing  condi- 
tions under  which  Industry  should  be  carried  on,  but  should 
confine  its  functions  to  the  simple  protection  of  the  laws  of 
nature  under  which  production  would  best  regulate  itself 
if  left  alone/  They  accordingly  attacked  the  prevailing 
notions  regarding  the  omnipotence  of  the  state  and  de- 
manded freedom  of  trade  and  industry.  This  doctrine 
received  a  powerful  stimulus  from  the  publication  of 
Adam  Smith's  "Wealth  of  Nations"  (1776),  which  was 
largely  a  plea  for  the  policy  of  non-interference  by  the  state 
in  economic  matters.     Smith  denounced  the  laws  then  in 


railways,  roads,  cab  fares,  and  the  carriage  of  letters ;  and  all  attempts  to  promote 
the  spread  of  knowledge  by  the  establishment  of  teaching  bodies,  examining  bodies, 
libraries,  or  museums ;  all  endeavors  to  advance  art  by  the  establishment  of  schools 
of  design,  or  picture  galleries,  or  by  spending  money  upon  an  architectural  public 
building  when  a  brick  box  would  answer  the  purpose.  According  to  their  views,  not 
a  shilling  of  public  money  must  be  bestowed  upon  a  public  park  or  pleasure  ground ; 
not  a  sixpence  upon  the  relief  of  starvation,  or  the  care  of  disease.  Those  who  hold 
these  views  support  them  by  two  lines  of  argument.  They  enforce  them  deductively 
by  arguing  from  an  assumed  axiom,  that  the  state  has  no  right  to  do  anything  but 
protect  its  subjects  from  aggression.  The  state  is  simply  a  policeman,  and  its  duty 
is  neither  more  nor  less  than  to  prevent  robbery  and  murder  and  enforce  contracts." 

Professor  Sidgwick  thus  states  the  functions  of  government  according  to  the  indi- 
vidualistic doctrines:  i.  "To  protect  the  interests  of  the  community  generally  and 
individual  citizens  so  far  as  may  be  necessary  from  the  attacks  of  foreign  states. 

2.  To  guard  individual  citizens  from  physical  injury,  constraint,  insult,  or  damage  to 
reputation,  caused  by  the  intentional  or  culpable  careless  action  of  other  individuals. 

3.  To  guard  their  property  from  detriment  similarly  caused ;  which  involves  the 
function  of  determining  doubtful  points  as  to  the  extent  and  content  of  the  right 
of  property  and  the  modes  of  legally  acquiring  it.  4.  To  prevent  deception  leading 
to  the  detriment  of  person  or  property.  5.  To  enforce  contracts  made  by  adults  in 
full  possession  of  their  reasoning  faculties,  and  not  obtained  by  coercion  or  misrepre- 
sentation nor  injurious  to  other  persons.  6.  To  protect  in  a  special  degree  persons 
unfit,  through  age  or  mental  disorder,  to  take  care  of  their  own  interests."  "Politi* 
cal  Economy,"  p.  420. 

^  Compare  Sidgwick,  "Political  Economy,"  p.  399. 


THE   LAISSEZ-FAIRE   THEORY  277 

force  restricting  the  free  interchange  of  the  products  of 
labor  and  interfering  with  the  free  employment  of  labor,  as 
mischievous  and  destructive  of  their  own  purpose.  Later 
the  doctrine  of  natural  liberty  in  economic  matters  was 
defended  by  various  other  English  economists,  notably 
Cairnes,  Ricardo,  and  Malthus;  by  French  writers  like 
Bastiat,  De  Tocqueville,  Dunnoyer,  Leon  Say,  and  M. 
Taine;  and  by  the  German  philosophers  Kant,  Fichte, 
Wilhelm  Humboldt,  and  the  Baron  Eotvos.  Still  more 
recently  the  individualistic  doctrines  have  found  earnest 
advocates  in  Laboulaye,  Michel,  and  Leroy-Beaulieu  in 
France,  and  in  Herbert  Spencer,  John  Stuart  Mill,  Earl 
Wemyss,  the  Duke  of  Argyle,  Bruce  Smith,  Wordsworth 
Donisthorpe,  and  others  in  England/ 

One  of  the  earliest  and  ablest  arguments  in  favor  of  the  wiiheim 
"governmental   minimum"   was   written   by   a    Prussian,  ^^^^'.^ 
Wilhelm  Humboldt,  in  1791,  but  for  political  reasons  it  Argument 
was  not  published  until   1852,  after  the  author's   death. 
It  was  entitled  "Ideen  zu  einem  Versuch,  die  Grenzen  der 
Wirksamkeit  eines    Staates  zu  bestimmen."  ^     Humboldt 
laid  down  the  proposition  that  the  state  should  "abstain 
from  all  solicitude  for  the  positive  welfare  of  the  citizens 
and  ought  not  to  proceed  a  step  farther  than  is  necessary 
for  their  mutual  security  and  protection  against  foreign 
enemies."     For  these  purposes  only  should  it  impose  re- 

'  The  laissez-faire  theories  have  been  vigorously  exploited  and  popularized  in 
England  by  the  "Liberty  and  Property  Defense  League,"  an  organization  formed 
some  years  ago  for  the  purpose  of  "resisting  overlegislation  and  for  maintaining 
individualism  as  opposed  to  socialism."  It  has  printed  and  distributed  thousands  of 
pamphlets,  leaflets,  and  some  books,  dealing  with  the  growing  tendency  to  substitute 
government  regulation  in  the  place  of  individual  management  and  enterprise  in  all 
branches  of  industry  and  attempting  to  show  the  paralyzing  effect  of  this  kind  of  legis- 
lation upon  the  national  development.  Its  membership  has  numbered  many  thou- 
sands, including  such  men  as  Lord  Justice  Bramwell,  the  Earl  of  Wemyss,  Lord 
Penzance,  and  the  Earl  of  Pembroke.  It  scrutinizes  all  projects  of  legislation  and 
endeavors  to  prevent  the  enactment  of  laws  contrary  to  the  principles  for  which  the 
league  stands. 

*  This  essay  has  been  translated  into  English  under  the  title  ''Sphere  and  Duties 
of  the  State,"  by  Joseph  Coulthard  (London,  1854). 


278 


THEORIES    OF    STATE    FUNCTIONS 


Spencer's 
Defense 
of  the 
Laissez- 
faire 
Theories 


strlctions  upon  individual  liberty/  "  The  grand  point  to 
be  kept  in  view  by  the  state,"  he  said,  "is  the  develop- 
ment of  the  powers  of  all  its  single  citizens  in  their  perfect 
individuality;  it  must,  therefore,  pursue  no  other  object 
than  that  which  they  cannot  procure  for  themselves, 
viz.  security;  and  this  is  the  only  true  and  infallible 
means  to  connect,  by  a  strong  and  enduring  bond,  things 
which  at  first  sight  appear  to  be  contradictory  —  the 
aim  of  the  state  as  a  whole  and  the  collective  aims  of  all 
its  individual  citizens."  ^ 

The  most  elaborate  defense  of  the  individualistic  view  of 
the  sphere  of  the  state  has  been  made  by  Herbert  Spencer 
in  a  series  of  essays  published  under  the  collective  title 
"Social  Statics  and  Man  versus  the  State,"  a  work  which 
has  done  more  to  elucidate  and  popularize  the  laissez-faire 
doctrine  than  any  other  political  treatise.  Spencer  starts 
out  with  the  assertion  that  the  existence  of  the  state  is 
the  result  of  man's  inherent  perversity  and  egoism  and 
that  in  reality  it  is  an  aggressor  rather  than  a  protector. 
"Be  it  or  be  it  not  true,"  he  says,  "that  man  is  shapen  in 
iniquity  and  conceived  In  sin,  it  is  unquestionably  true 
that  government  is  begotten  of  aggression  and  by  ag- 
gression." ^  Being  Instituted  merely  for  the  purpose  of 
curbing  his  wicked  propensities  and  protecting  him  from 
the  violence  and  fraud  of  his  fellows,  it  follows  that  in 
a  morally  perfect  condition  of  society  government  can 
have  no  raison  d'etre.  "Have  we  not  shown,"  he  asks, 
"that  government  Is  essentially  immoral  ?  .  .  .  Does  It 
not  exist  because  crime  exists,  and  must  government 
not  cease  when  crime  ceases,  for  very  lack  of  objects 
on   which    to   perform   Its  functions  ?"      He   goes  on    to 

1  Ch.  III. 

'Ibid.,  p.  184.  It  is  interesting  to  note  in  view  of  Humboldt's  ideas  concerning  state 
aid  to  education  that  in  later  life  he  was  minister  of  public  instruction  in  Prussia  and 
was  the  founder  of  the  University  of  Berlin,  an  institution  supported  and  maintained 
by  the  state. 

*  "Social  Statics  and  Man  v.  the  State  "  (1903),  p.  334. 


THE   LAISSEZ-FAIRE   THEORY  279 

say  that  "it  is  a  mistake  to  consider  that  government 
must  last  forever,  ...  It  is  not  essential,  but  inciden- 
tal. As  amongst  Bushmen  we  find  a  state  antece- 
dent to  government,  so  may  there  be  one  in  which  it 
shall  have  become  extinct."  The  doctrine  that  the  state 
is  justified  in  doing  whatever  seems  to  those  in  authority 
to  be  "expedient,"  or  whatever  tends  to  produce  the 
"greatest  happiness,"  or  which  will  subserve  the  "general 
good, "  Spencer  denounces  as  governmental  despotism, 
since  there  is  no  standard  or  test  for  determining  what  is 
expedient  or  what  is  for  the  general  good  except  the  opin- 
ions of  the  governors  themselves. 

He  dwells  upon  what  he  calls  the  militant  type  of  society.  The  Miu- 
with  its  excessive  regimentation  and  its  army-like  organi-  *^^^*^^  ^j^^ 
zation;  he  compares  this  with  the  industrial  type,  con-  industrial 
trasts  the  condition  of  the  individual  under  the  regime  society 
of  status  with  his  condition  under  a  regime  of  contract, 
as  he  calls  it,  and  emphasizes  the  advantages  of  volun- 
tary over  compulsory  cooperation  and  of  negative  versus 
positive  regulation.  The  experience  of  the  past,  he  afiirms, 
proves  that  the  acquisition  of  happiness  does  not  come 
through  state  action,  but  through  being  left  alone.  Cut- 
ting away  men's  opportunities  on  one  side  in  order  to  add 
to  them  on  another  is  nearly  always  accompanied  by  loss, 
he  says,  through  the  friction  of  administrative  mechan- 
ism. The  sphere  of  government  should  be  "negatively 
regulative,"  that  is,  its  functions  should  be  to  redress 
evils,  not  to  try  to  make  men  happier  by  helping  them  to 
do  what  they  can  do  as  well  or  better  themselves.  "To 
administer  justice,  to  mount  guard  over  men's  rights,"  are 
the  only  proper  functions  of  the  state;  and  when  it  does 
more,  it  defeats  its  own  ends.  The  duty  of  the  state  is  to 
formulate  in  law  preestablished  rights,  not  to  create  them, 
and  to  enforce  them  instead  of  intruding  on  them  like  an 
aggressor.^     The  individual  has  but  one  right,   the  right 

'  Ibid.,  p.  406. 


28o  THEORIES    OF   STATE    FUNCTIONS 

of  equal  freedom  with  everybody  else,  and  the  state  but 
one  duty,  the  duty  of  protecting  that  right  against  vio- 
lence and  fraud, 
state  Ac-        Spencer  inveighed  against  all  legislation  for  the  regula- 
con-  tion  of  commerce  and  trade;    against  sanitary  legislation, 

demned  such  as  quarantine,  vaccination,  and  registration  laws; 
against  public  education;  against  poor  relief  by  the  state; 
and  even  against  state-managed  post  offices  and  currency 
issued  by  the  state.  Every  attempt  to  mitigate  the  suf- 
fering of  the  poor  through  state  intervention,  he  declared, 
"eventuates  in  the  exacerbation  of  it."  The  sums  de- 
voted to  the  support  of  paupers  should  go  to  support  la- 
borers in  new  reproductive  works. ^  In  regard  to  education 
by  the  state,  he  observes  that  "taking  away  a  man's  prop- 
erty to  educate  his  own  or  other  people's  children  is  not 
needful  for  the  maintenance  of  his  rights  and  hence  is 
wrong."  ^  State  intervention  is  legitimate  only  for  the 
protection  of  violated  rights,  and  the  rights  of  children  are 
not  violated  by  neglect  of  their  education.  The  idea  that 
it  is  the  duty  of  the  state  to  undertake  to  protect  the 
health  of  the  people  Spencer  combats  with  equal  ardor, 
though  he  admits  that  the  state  may  suppress  nuisances.^ 
All  taxation  for  sanitary  superintendence  must,  he  says,  be 
condemned.  He  goes  to  the  length  even  of  maintaining 
that  it  is  a  "violation  of  the  moral  law"  for  the  state  to 
"interpose  between  quacks  and  those  who  patronize 
them,"  or  to  forbid  unlicensed  persons  from  prescribing 
for  the  sick,  since  it  is  the  inalienable  right  of  the  individual 
to  "buy  medicine  and  advice  from  whomsoever  he  pleases," 
and  the  unlicensed  practitioner  should  have  the  same  right 
to  sell  to  whomsoever  he  will.  Regarding  the  right  of 
the  state  to  monopolize  the  issue  of  money,  he  maintains 
that  it  cannot  justly  forbid  the  issue  of  or  enforce  the  ac- 
ceptance of  certain  notes  or  coin  in  return  for  other  things, 
since  that  would  be  an  infringement  of  the  natural  right 

'  "Social  Statics,"  p.  132.  *  Ibid.,  p.  156.  *  Ibid.,  p.  200. 


THE   LAISSEZ-FAIRE    THEORY  281 

of  exchange  and  a  violation  of  the  law  of  equal  freedom.* 
Finally,  Spencer  condemns  the  construction  of  public 
works  by  the  state  except  such  as  may  be  necessary  for  the 
national  defense  and  rejects  its  right  to  a  monopoly  of 
the  postal  service,  since  "it  is  clear  that  the  restriction 
thus  put  upon  the  liberty  of  trade  by  forbidding  private 
letter-carrying  establishments  is  a  breach  of  state  duty."  ^ 

Much  of  Spencer's  case  against  the  state  is  based  upon  Basis  of 
the  errors  and  blunders  of  particular  governments  in  the  f^gu-*''* 
past.  The  statute  books,  he  laments,  are  a  record  of  ment 
"unhappy  guesses."  "Nearly  every  parliamentary  pro- 
ceeding is  a  tacit  confession  of  impotence,  for  the  great 
majority  of  legislative  measures  introduced  are  designed 
to  amend  and  improve  existing  laws."  In  an  essay  entitled 
"The  Sins  of  Legislators,"  Spencer  reviews  much  of  the 
unwise  legislation  of  the  past,  dwells  upon  the  evils  which 
resulted  from  it,  and  concludes  that  because  much  of 
this  legislation  v/as  in  time  repealed  or  modified  it  ought 
never  to  have  been  enacted.  He  protests  against  what 
he  calls  the  worship  of  the  legislature  and  asserts  that  as 
the  great  political  superstition  of  the  past  was  the  divine 
right  of  kings,  that  of  the  present  is  the  divine  right  of  par- 
liaments. And  the  divine  right  of  parliaments  means  only 
the  divine  right  of  the  majority,  for  the  minority  has  no 
right  to  be  respected.^  Some  men  actually  seem  to  think, 
he  remarks,  that  individuals  can  be  made  moral  by  an  act 
of  the  legislature  and  that  which  is  economically  unsound 
can  be  made  sound  and  wise  by  the  fiat  of  the  state. 

Some  of  Spencer's  followers,  like  Donisthorpe  and 
Auberon  Herbert,  go  to  even  greater  lengths  in  their  op- 
position to  state  regulation.  They  not  only  oppose  edu- 
cation by  the  state;  poor  relief;  inspection  of  factories, 
mines,  and  workshops;  the  regulation  of  injurious  trades; 
compulsory  vaccination  laws;  quarantine  and  health  regu- 
lations;   the  requirement  of  official  oaths;    Sunday  legis- 

'  Ibid.,  pp.  221-226.  '  Ibid.,  p.  231.  'Ibid.,  p.  381. 


282 


THEORIES   OF    STATE   FUNCTIONS 


lation;  laws  regulating  public  amusements;  restrictions 
upon  the  sale  of  liquor,  etc.,  — but  they  even  deny  to  the 
state  the  right  to  regulate  the  marriage  relation  or  re- 
strict in  any  manner  individual  liberty  in  social  matters 
except  in  so  far  as  it  is  absolutely  necessary  to  protect  each 
man  from  the  positive  aggressions  of  his  fellows/ 


The 

Grounds 
of  Justice 


Freedom 
Essential 
to  the 
Harmo- 
nious De- 
velopment 
of  the  In- 
dividual 


II.      DEFENSE   OF   THE   LAISSEZ-FAIRE  THEORY 

In  defense  of  the  individualistic  conception  of  the  sphere 
of  state  activity  it  is  argued,  in  the  first  place,  that  con- 
siderations of  justice  require  that  the  individual  shall  be 
let  alone  by  the  state  in  order  that  he  may  realize  fully 
and  completely  the  ends  of  his  existence.  This  particular 
line  of  argument  has  had  the  powerful  support  of  such 
scholars  as  Kant,  Fichte,  Humboldt,  and  John  Stuart  Mill. 
According  to  their  views  it  is  necessary  to  the  harmonious 
development  of  all  the  powers  of  the  individual  that  he 
should  be  interfered  with  as  little  as  possible  by  the  state, 
because  every  restriction  upon  his  freedom  of  action  tends 
to  destroy  his  sense  of  initiative  and  self-reliance,  weaken 
his  responsibility  as  a  free  agent,  impair  his  energies,  and 
blunt  his  character. 

"The  true  end  of  man,  or  that  which  is  prescribed  by  the 
immutable  dictates  of  reason,"  observed  Humboldt,  "is 
the  highest  and  most  harmonious  development  of  his 
powers  to  a  complete  and  consistent  whole."  Over- 
government  Humboldt  goes  on  to  say,  not  only  dimin- 
ishes freedom,  but  "superinduces  national  uniformity  and 
a  constrained  and  unnatural  manner  of  action"  by  its 
tendency  to  reduce  society  to  a  dead  level. ^  The  same 
line  of  argument  is  pursued  by  Mill,  who  asserts  that 
an  excess  of  government,  especially  of  the  meddling  and 
inquisitorial     sort,     "starves    the    development    of  some 


'  Compare  especially  Donisthorpe,  "Individualism,"  chs.  6  and  7. 
•  "Ideen,"  etc.,  chs.  i  and  2. 


DEFENSE   OF   THE   LAISSEZ-FAIRE   THEORY  283 

portion  of  the  bodily  or  mental  faculties,  when  it  de- 
prives one  from  doing  what  one  is  inclined  to  do  or  from 
acting  according  to  one's  judgment  of  what  is  desir- 
able." ^  Free  competition  develops  in  the  individual  the 
highest  possibilities,  sharpens  and  strengthens  his  powers 
of  initiative,  and  increases  his  sense  of  self-reliance;  while 
overgovernment  not  only  hampers  enterprise  and  inter- 
feres with  the  natural  development  of  trade,  but  it  strikes 
at  the  development  of  character,  tends  to  crush  out  in- 
dividuality and  originality  by  interfering  with  the  natural 
struggle  between  individuals,  and  leads  to  a  general  lower- 
ing of  the  social  level. ^  The  highest  civilization,  say  the  Overgov- 
laissez-faire  advocates,  has  been  developed  under  individ-  "eSens 
ualism,  a  system  which  has  produced  more  material  and  individual 
educational  progress  than  could  ever  have  been  produced 
under  paternalism.  Spencer  dwells  upon  the  fact  that  in 
an  overgoverned  state  "everybody  is  like  everybody  else." 
Government  management  and  control  of  industry,  he  com- 
plains, is  "essentially  despotic";  it  "unavoidably  cramps" 
by  diminishing  liberty  of  action,  "angers,"  leads  to  dis- 
content, "galls  by  its  inefficiency,  and  restrictions,"  of- 
fends by  professing  to  help  those  whom  it  will  not  allow 
to  help  themselves  and  vexes  by  the  swarm  of  dictatorial 
officials  who  are  forever  stepping  in  between  men  and  their 
pursuits.^  The  "evils  of  officialism"  and  of  "sociahstic 
meddlings,"  he  declares,  prevent  the  healthy  and  natural 
development    of  a  people,    while  freedom    develops   and 

*  "Political  Economy"  (ed.  of  1864),  vol.  II,  p.  561;  cf.  also  Kant  in  his  "Prin- 
ciples of  Politics  "  (trans,  by  Hastie,  p.  36).  "Individualism,"  says  Michel,  in  his 
"L'Idee  del'Etat"  (p.  372),  "stands  for  the  emancipation  of  the  man,  the  complete 
development  of  all  his  powers,  and  the  full  enjoyment  of  all  his  rights  as  an  in- 
dividual." Again  he  says,  "Individualism  is  alone  capable  of  furnishing  a  rational 
foundation  for  the  philosophy  of  right  as  well  as  political  liberty  and  the  sover- 
eignty of  the  people."     Ibid.,  p.  630. 

^Compare  Bruce-Smith,  "Liberty  and  Liberalism,"  p.  320;  and  Argyle, 
"Reign  of  Law,"  p.  340. 

'  "  Social  Statics,"  p.  135. 


284 


THEORIES   OF    STATE   FUNCTIONS 


Individu- 
alism rests 
on  Scien- 
tific 
Grounds 


Individ- 
ualism 
rests  on 
Sound 
Economic 
Principles 


strengthens  individual  character  and  conduces  to  human 
progress.  "A  people  among  whom  there  is  no  habit  of 
spontaneous  action  for  a  collective  interest,"  said  Mill 
"who  look  habitually  to  their  government  to  command 
and  prompt  them  in  matters  of  joint  concern  —  who 
expect  to  have  everything  done  for  them  except  what  can 
be  made  an  affair  of  mere  habit  and  routine — have  their 
faculties  only  half  developed ;  their  education  is  defective 
in  one  of  its  most  important  branches."  ^ 

The  laissez-faire  principle,  say  its  advocates,  rests  also 
upon  sound  considerations  of  a  scientific  character.  It  is 
in  harmony  with  the  prnciple  of  evolution,  since  it  is  the 
only  system  that  will  lead  to  the  survival  of  the  fittest 
in  the  economic  struggle.  It  assumes  that  self-interest  is 
a  universal  principle  in  human  nature,  that  each  indi- 
vidual is  a  better  judge  of  what  his  own  interests  are 
than  any  government  can  possibly  be,  and  that  if  left 
alone  he  will  follow  them.^  It  holds  that  each  individual 
should  be  allowed  to  stand  alone  or  fall  according  to  his 
worth,  unaided  by  the  props  and  supports  of  the  state,  and 
should  be  left  to  work  out  his  own  destiny  without  the 
guidance  and  tutelage  of  government.  By  leaving  each 
individual  to  do  unaided  that  for  which  he  is  best  fitted, 
the  strong  and  fit  classes  survive,  the  unfit  elements  are 
eliminated,  and  thus  the  good  of  society  is  promoted.' 

Again,  and  this  is  most  important  in  the  arguments  of 
the  laissez-faire  theorists,  the  policy  of  non-interference 
rests  upon  sound  economic  principles.     Better  economic 

'  "Political  Economy,"  vol.  II,  p.  567. 

^  Ibid.,  p.  569.  Cf.  Willoughby,  "The  Nature  of  the  State,"  p.  326;  and 
Jourdan,  "Role  de  I'fitat  dans  I'Ordre  economique,"  p.  37.  "  Laissez  faire," 
says  Cairnes,  "  assumes  that  the  interests  of  human  beings  are  fundamentally  the 
same;  that  that  which  is  best  for  the  interests  of  one  is  the  best  for  others;  that 
the  individual  knows  his  interests  in  the  sense  in  which  they  are  coincident  with 
the  interests  of  others  and  that  in  the  absence  of  coercion  he  will  in  this  sense 
follow  them."     "Essays  on  Political  Economy,"  p.  244. 

'  Compare  Smith,  "Liberty  and  Liberalism,"  p.  429. 


DEFENSE   OF   THE   LAISSEZ-FAIRE   THEORY  285 

results,  it  is  asserted,  are  obtained  for  society  by  leaving 
the  conduct  of  industry  as  far  as  possible  to  private  enter- 
prise. Adam  Smith,  in  his  "Wealth  of  Nations,"  pointed 
out  that  the  system  of  natural  liberty  tends  toward  the 
largest  production  of  wealth.  The  self-interest  of  the 
consumer  will  lead  to  the  demand  for  the  things  that  are 
most  useful  to  society,  while  the  self-interest  of  the  pro- 
ducer will  lead  to  their  production  at  the  least  cost/  In 
the  economic  struggle  the  individual  is  animated  mainly 
by  motives  of  self-interest.  If,  therefore,  he  is  allowed  to 
use  his  capital  as  he  pleases,  to  dispose  of  his  labor  to 
the  best  advantage,  to  exchange  the  products  of  his  toil 
freely,  and  to  have"  prices  fixed  by  the  natural  laws  of 
supply  and  demand,  better  results,  not  only  to  himself, 
but  to  the  whole  society,  will  be  secured.  Unrestricted 
competition  stimulates  economic  production,  tends  to  keep 
wages  and  prices  at  a  normal  level,  to  prevent  usurious 
rates  of  interest,  to  secure  efficient  service  and  the  pro- 
duction of  better  products  than  can  be  obtained  by  state 
regulation  or  state  management. 

The  experience  of  the  past,  say  the  laissez-faire  advocates.  The  Policy 
abundantly  establishes  the  wisdom  of  the  non-interference  °^^^c»^l" 

-'  sive  state 

principle.  History  is  full  of  examples  of  attempts  to  fix  Reguia- 
by  fiat  of  the  state  the  prices  of  food  and  clothing  and  of  demned 
many  other  commodities;    of  laws  regulating  the  wages  of  by  Exp(-ri- 

encc 

labor,  prohibiting  the  wearing  of  certain  kinds  of  apparel 
and  requiring  the  wearing  of  certain  other  kinds,  for- 
bidding the  exportation  of  divers  commodities,  forbid- 
ding certain  kinds  of  machinery  in  manufacturing  pro- 
cesses, restricting  the  manufacture  of  certain  articles  to 
apprentices,  prescribing  the  location  of  factories;  laws 
aiding  and  encouraging  certain  industries  by  means  of 
bounties  and  discouraging  certain  others  by  prohibitive 
taxes;  laws  prohibiting  combinations  among  laboring 
men,  fixing  the  hours  of  labor,  restricting  certain   trades 

'  Compare  Sidgwick,  "Political  Economy,"  p.  401. 


286  THEORIES   OF    STATE   FUNCTIONS 

exclusively  to  members  of  guilds;  and  even  laws  pre- 
scribing the  cut  of  one's  dress,  the  number  of  meals  which 
one  should  eat,  the  sizes  of  buttonholes,  the  length  of 
shoes,  the  making  of  pins,  and  the  kind  of  material  in  which 
the  dead  should  be  buried.  As  late  as  1795  magistrates 
in  England  had  the  power  of  fixing  the  rate  of  wages  ac- 
cording to  the  price  of  bread,  and  it  was  not  until  the 
same  year  that  a  workman  could  travel  out  of  his  parish 
in  search  of  work.  Until  1824  there  was  in  force  an  act  of 
Parliament  which  forbade  manufacturers  from  locating 
their  factories  more  than  ten  miles  from  the  royal  ex- 
change. Throughout  the  seventeenth  and  eighteenth 
centuries  the  state  everywhere  exercised  a  strict  and  at 
times  arbitrary  control  over  many  forms  of  industry.  It 
determined  who  could  work  and  where,  the  materials  with 
which  they  should  work,  and  the  conditions  generally  under 
which  various  trades  should  be  carried  on.  Legions  of 
inspectors,  measurers,  and  commissioners  saw  that  the 
conditions  prescribed  by  the  state  were  observed.*  Regu- 
lations prescribing  the  quality  and  dimensions  of  manu- 
factured articles  were  defended  on  the  ground  that  con- 
sumers were  not  competent  judges  of  their  own-  needs. 
Industry  was  deprived  of  its  natural  freedom  by  laws  for- 
bidding skilled  labor  except  by  apprentices  or  by  monopo- 
lies which  limited  the  right  to  engage  in  certain  trades  to 
Meddle-  those  who  had  exclusive  privileges.  Most  of  such  legis- 
hiation^^'  ^^.tion  was  mischicvous  and  destructive  of  the  ends  which 
it  was  intended  to  secure,  and  the  results  which  were 
sought  for  could  have  been  more  effectively  obtained  by 
allowing  every  man  to  sell  his  labor  and  goods  whenever 
and  wherever  he  wished.^  Speaking  of  those  who  were 
responsible  for  this  sort  of  legislation,  Buckle  observed 
that  "they  went  blundering  along  in  the  old  track,  believ- 

^  Cf.  Mill,  "Political  Economy,"  vol.  II,  pp.  532  ff. 

'  Cf.  Smith,  "Liberty  and  Liberalism,"  p.  247.     For  a  review  of  such  legislation 
see  Hume,  "History  of  England,"  vol.  II,  ch.  16,  and  Smith,  op.  cit.,  ch.  6. 


DEFENSE    OF    THE    LAISSEZ-FAIRE   THEORY  287 

ing  that  no  commerce  could  flourish  without  their  interfer- 
ence, hampering  that  commerce  by  repeated  and  harassing 
regulations,  and  taking  for  granted  that  it  was  the  duty 
of  every  government  to  benefit  the  trade  of  its  own  people 
by  injuring  the  trade  of  others."  ^  The  extent  to  which 
the  governing  classes  have  interfered  and  the  mischief 
which  that  interference  has  produced  are  so  remarkable, 
he  concludes,  as  to  make  thoughtful  men  wonder  how  civi- 
lization could  have  advanced  in  the  face  of  such  repeated 
obstacles. 

Finally,  the  laissez-faire  theorists  argue  that  it  Is  a  The  state 
false  assumption  which  attributes  omniscience  and  in-  ""Jciell?' 
fallibility  to  the  state  and  which  regards  it  as  better  or  infai. 
fitted  to  judge  of  the  needs  of  the  individual,  and  to  pro- 
vide for  them  than  he  is  himself.  There  is,  they  assert,  a 
common  belief  that  governments  are  capable  of  doing 
anything  and  everything,  and  of  doing  it  more  efficiently 
than  it  can  be  done  by  private  initiative,  when,  in  real- 
ity, experience  and  reason  show  the  contrary  to  be  the  fact. 
The  state  has  no  greater  powers  of  invention  or  of  initia- 
tive than  the  individuals  who  compose  it;  it  is  not  a  cre- 
ative organ,  but  an  "organ  which  acts  only  by  means  of  a 
complicated  apparatus,  composed  of  numerous  wheels  and 
systems  of  wheels  subordinated  one  to  another";  it  is  an 
organ  of  criticism,  of  generalization,  and  of  coordination, 
from  which  it  follows  that  the  state  cannot  be  the  first 
agent,  the  primary  cause  of  progress  in  human  society,  but 
only  an  auxiliary  or  agent  of  propagation.^  Every  addi- 
tional function,  observes  Mill,  means  a  new  burden  imposed 
on  a  body  already  overcharged  with  duties;  the  result  is 
that  most  things  are  ill  done;  and  much  is  not  done  at  all, 
because  the  government  is  not  able  to  do  it  without  delays. 
The  great  majority  of  things  are  worse  done,  he  declares, 
when  done  by  government  than  when  done  by  individuals 

*  "History  of  Civilization,"  vol.  I,  p.  313. 

*  Leroy-Beaulieu,  "The  Modern  State,"  bk.  I,  ch.  5. 


288  THEORIES   OF   STATE    FUNCTIONS 

who  are  most  interested,  for  the  people  understand  their 
own  business  better  and  care  for  it  better  than  any  govern- 
ment can;  all  the  faculties  which  a  government  enjoys 
of  access  to  information,  all  the  means  which  it  possesses 
of  remunerating  and  therefore  of  commanding  the  best 
available  talent  in  the  market,  are  not  an  equal  for  the  one 
great  disadvantage  of  an  inferior  interest.* 

*  "Political  Economy, "  vol.  II,  p.  565.  While  the  state  possesses  certain  natural 
characteristics  which  give  it  a  decided  advantage  as  an  industrial  manager,  it  has, 
says  Rae,  in  his  work  on  "Contemporary  Socialism"  (p.  409)  "one  great  natural 
defect,  its  want  of  a  personal  stake  in  the  produce  of  the  business  it  conducts,  its  want 
of  that  keen  check  on  waste  and  that  pushing  incentive  to  exertion  which  private 
individuals  enjoy  in  the  eye  and  energy  of  the  master.  This  is  the  great  taproot  from 
which  all  the  usual  faults  of  government  management  spring  —  its  routine,  red- 
tape  spirit,  its  sluggishness  in  noting  changes  in  the  public  taste,  and  in  introducing 
improved  methods  of  production.  Government  servants  may  very  generally  be  men 
of  a  higher  stamp  and  training  than  the  servants  of  a  private  company,  but  they  are 
proverbial,  on  the  one  hand,  for  a  certain  lofty  disdain  of  the  humble  but  valuable 
virtue  of  parsimony,  and,  on  the  other,  for  an  unprogressive,  unenterprising,  unin- 
ventive  administration  of  business." 

The  objections  to  the  extension  of  governmental  functions  beyond  what  is  required 
to  satisfy  the  individualistic  standard  are  well  summarized  by  Lecky,  in  his  "Democ- 
racy and  Liberty"  (vol.  I,  p.  276),  as  follows:  "There  is,  in  the  first  place,  what 
may  be  called  the  argument  of  momentum,  which  Herbert  Spencer  has  elaborated 
with  consummate  skill  and  force.  It  is  absolutely  certain  that,  when  this  system 
is  largely  adopted,  it  will  not  remain  within  the  limits  which  those  who  adopted  it 
intended.  It  will  advance  with  an  accelerated  rapidity;  every  concession  becomes  a 
precedent  or  basis  for  another  step,  till  the  habit  is  fully  formed  of  looking  on  all 
occasions  for  state  assistance  or  restriction,  and  till  a  weight  of  taxation  and  debt 
has  been  accumulated  from  which  the  first  advocates  of  the  movement  would  have 
shrunk  vdth  horror.  There  is  the  weakening  of  private  enterprise  and  philanthropy ; 
a  lowered  sense  of  individual  responsibility ;  a  diminished  love  of  freedom ;  the 
creation  of  an  increasing  army  of  officials,regulating  in  all  its  departments  the  aflfairs 
of  life ;  the  formation  of  a  state  of  society  in  which  vast  multitudes  depend  for  their 
subsistence  on  the  bounty  of  the  state.  All  this  cannot  take  place  without  impairing  the 
springs  of  self-reliance,  independence,  and  resolution,  without  gradually  enfeebling 
both  the  judgment  and  the  character.  It  produces  also  a  weight  of  taxation  which, 
as  the  past  experience  of  the  world  abundantly  shows,  may  easily  reach  a  poijit  that 
means  national  ruin.  An  undue  portion  of  the  means  of  the  individual  is  forcibly 
taken  from  him  by  the  state,  and  much  of  it  is  taken  from  the  most  industrious  and 
saving,  for  the  benefit  of  those  who  have  been  idle  or  improvident.  Capital  and  in- 
dustry leave  a  country  where  they  are  extravagantly  burdened  and  have  ceased  to  be 
profitable,  and  even  the  land  itself  has  been  thrown  out  of  cultivation  on  account  of 
the  weight  of  an  excessive  taxation." 


CRITICISM    OF   THE   LAISSEZ-FAIRE   DOCTRINE        289 
III.     CRITICISM    OF   THE   LAISSEZ-FAIRE   DOCTRINE 

The  individualistic  theory  of  state  functions  has  been  The  state 
criticised  upon  various  grounds.  First  of  all,  the  assumption  an^EvU 
that  the  state  is  an  evil  has  not  been  borne  out  by  the  experi- 
ence of  mankind  under  the  regime  of  state  organization. 
History,  in  fact,  shows  unmistakably  that  the  progress  of 
civilization  in  the  past  has  been  promoted  to  a  very  large 
degree  by  wisely  directed  state  action,  in  short,  that  the 
state  is  a  positive  good.  It  is  true,  of  course,  that  at 
times  the  ends  of  the  state  have  been  perverted  to  the 
detriment  of  the  public  good,  but  this  is  no  more  reason 
for  condemning  it  as  an  evil  than  for  saying  that  rail- 
roads are  an  evil  because  their  operation  sometimes  re- 
sults in  accidents.  Spencer's  doctrine  that  the  state 
exists  only  because  crime  exists  and  that  it  would  sub- 
serve no  purpose  in  a  society  of  morally  perfect  beings 
cannot  be  accepted.  The  function  of  the  state  in  the 
complex  civilization  of  to-day  is  not  merely  repressive, 
not  simply  "negatively  regulative"  ;  it  has  a  higher  mission 
than  that  of  restraint  and  punishment. 

So  long  as  men  live  in  groups  they  will  have  collective  Function 
wants  which  can  only  be  satisfied  through  state  organiza-  o!l^®    . 

■'    ^  °     ^  °  State  not 

tion,  and  hence  there  is  no  reason  for  believing  that  the  merely 
necessity  for  the  state  will  ever  disappear  or  that  the  role  Restraint 
which  it  now  plays  in  the  life  of  human  societies  will  ever 
diminish.     On   the  contrary,   all   the   signs  indicate   that 
with  the  increasing  complexity  of  modern  civilization  the 
need  for  state  action  will  become  stronger  and  its  role  more 
extensive.     In  comparatively  recent  years  a  strong  reac-  Reaction 
tion  against  the  individualistic  movement  of  the  earlier  ^^e^^oc- 
nineteenth    century    has    everywhere    taken    place,    due  trine  of 
largely   to   the   conditions   resulting   from   the   growth   of  ySx^  ' 
manufactures,    the   congestion   of   the   population   in   the 
cities,   the  growth  of  corporate  wealth,   and  changed  eco- 
nomic and  social  conditions  generally,  all  of  which  have 

POL.  SCI.  —  19 


290 


THEORIES   OF   STATE    FUNCTIONS 


Mistaken 
Views  of 
the  Indi- 
vidualists 


thrown  the  laissez-faire  theories  into  disrepute.  "The 
higher  the  state  of  civilization,"  observes  Huxley,  "the 
more  completely  do  the  actions  of  one  member  of  the  social 
body  influence  all  the  rest,  and  the  less  possible  is  it  for 
any  one  man  to  do  a  wrong  without  interfering  more  or 
less  with  the  freedom  of  all  his  fellow-citizens.  So  that 
even  upon  the  narrowest  view  of  the  functions  of  the  state 
it  must  be  admitted  to  have  wider  powers  than  the  advo- 
cates of  the  police  theory  are  disposed  to  admit."  *  La- 
veleye  points  out  in  the  same  manner  that  as  civilization 
progresses  men  become  more  dependent  on  one  another 
and  upon  society  as  a  whole,  and  hence  the  role  of  the 
state  must  increase  correspondingly  in  order  to  satisfy 
their  common  wants.  The  individualism  of  Spencer,  as 
Laveleye  rightly  concludes,  is  wholly  inadmissible  under 
the  conditions  of  modern  society.^ 

The  view  of  the  laissez-faire  advocates  that  state  interven- 
tion in  the  interest  of  the  common  good  necessarily  involves 
a  curtailment  of  individual  freedom  rests  on  an  assumption 
that  is  true  only  within  very  restricted  limits.  It  is  a  very 
narrow  view  indeed  which  sees  in  a  factory  act,  a  pure 
food  law,  or  a  quarantine  regulation  nothing  but  an  in- 
fringement upon  the  domain  of  individual  liberty."  ^ 
The  rights  of  all  are  enlarged  and  secured  by  wise  restric- 

*  "Critiques  and  Addresses,"  p.  11.  Compare  also  Mill,  himself  an  individualist 
in  most  matters,  who  remarks  that  the  restriction  of  government  to  the  mere  protec- 
tion of  person  and  property  against  force  and  fraud  is  a  rule  which  cannot  be  strictly 
adhered  to,  for  it  "  excludes  some  of  the  most  undisputed  and  recognized  functions 
of  government."    "  Political  Economy,"  vol.  II,  p.  387. 

*  "  Le  Gouvernement  dans  la  Democratie,"  vol.  I,  p.  38.  See  also  an  article  by 
Laveleye  in  the  "Contemporary  Review"  for  April,  1885,  in  which  the  individual- 
istic views  of  Spencer  are  criticised. 

'  Nevertheless,  this  is  the  attitude  of  the  laissez-faire  theorists.  Bruce  Smith, 
for  example,  in  his  "  Liberty  and  Liberalism,"  pp.  536-540,  argues  that  a  factory  act 
is  a  "  distinct  instance  of  interference  with  property."  "  Every  act  of  parliament," 
he  says,  "  which  in  any  way  curtails  the  hours  of  labor  or  limits  the  number  of 
workmen  involves  an  interference  with  the  freedom  of  industry  and  renders  less 
valuable  the  property  invested  in  the  business  upon  which  the  restrictions  are  im- 
posed." 


CRITICISM    OF    THE   LAISSEZ-FAIRE   DOCTRINE        291 

tions  upon  the  actions  of  each.  It  is  somewhat  Hke  pruning 
a  fruit  tree  or  trimming  a  vineyard;  it  means  a  loss  of  some 
fruit,  but  better  fruit  is  produced  so  that  all  are  gainers  in 
the  end. 

The  weakest  point  in  the  argument  of  the  laissez-  The  state 
faire  advocates  is  the  assumption  that  the  state  is  neces-  Ho^tUe  to 
sarily  hostile  to  freedom,  that  government  and  liberty  Liberty 
represent  antithetical  ideas,  that  in  proportion  as  the 
functions  of  government  are  multiplied  the  domain  of 
individual  liberty  is  restricted,  —  in  short,  that  a  maximum 
of  government  means  a  minimum  of  freedom.  In  reality 
wisely  organized  and  directed  state  action  not  only  en- 
larges the  moral,  physical,  and  intellectual  capacities  of 
individuals,  but  increases  their  liberty  of  action  by  remov- 
ing obstacles  placed  in  their  way  by  the  strong  and  self- 
seeking,  and  thus  frees  them  from  the  necessity  of  a 
perpetual  struggle  with  those  who  would  take  advantage 
of  their  weakness.  In  this  way  the  latent  abilities  of  the 
individual  are  liberated,  and  his  opportunities  increased.^ 
It  is  manifestly  wrong  to  assume  that  all  restraint  is  an 
evil.  In  truth  the  state  emancipates  and  promotes  as  well 
as  restrains.  The  doctrine  that  governmental  regula-  Not  all 
tion  tends  to  impair  individual  character  by  weakening  the  ^^an^EvU 
sense  of  individual  initiative,  self-reliance,  and  self-help, 
and  by  preventing  the  full  and  harmonious  development 
of  the  faculties  of  the  individual,  has  been  greatly  exag- 
gerated by  the  laissez-faire  advocates.  Many  of  the  individ- 
ualistic writers  like  Mill,  Humboldt,  and  Spencer  have,  in 
fact,  confused  individuality  with  eccentricity  and  oddity  of 
character,  qualities  which  in  themselves  have  nothing  of 
value.  Character  is  developed  not  through  freedom  alone, 
but  quite  as  much  through  discipline  and  restraint.  It  is 
not  true  that  as  the  functions  of  government  are  extended 
the  individual  becomes  weaker  and  less  self-reliant.     The 

'Compare  Ritchie,  "Principles  of  State  Interference,"  p.  50;  and  Funck-Bren- 
iano,  "La  Politique,"  p.  34. 


292 


THEORIES   OF    STATE   FUNCTIONS 


Individu- 
alistic 
Exaggera- 
tions 


The  In- 
terests of 
the  Indi- 
vidual not 
Separate 
from  those 
of  Society 


most  perfectly  developed  man  is  the  social,  not  the  natural 
man,  for  it  is  now  generally  admitted  that  the  individual 
owes  much  of  his  character  to  the  society  of  which  he  is  a 
part. 

The  chief  fault  of  the  individualists  is  that  they  exagger- 
ate the  evils  of  state  regulation  and  minimize  the  advan- 
tages; they  misunderstand  the  true  nature  and  limits  of 
liberty  and  have  a  mistaken  idea  of  the  relation  of  the 
individual  to  the  society  of  which  he  is  a  part.  In  short, 
they  overemphasize  the  importance  of  the  man  at  the 
expense  of  the  group;  they  treat  him  as  if  he  were  para- 
mount and  as  if  he  determined  the  character  of  society  when 
in  fact  it  is  society,  as  has  been  said,  that  determines  in  a 
large  degree  the  character  of  the  individual.  Their  doc- 
trine rests  on  the  assumption  that  the  individual  is  largely 
a  thing  apart  from  the  group  of  which  he  is  a  member,  that 
he  can  be  separated  from  society  and  treated  as  though  his 
interests  were  entirely  distinct  from  the  interests  of  his 
fellow  men.  In  reality,  however,  the  individual  is  more 
than  a  mere  fraction  of  society;  he  is  the  epitome  of  it; 
he  is  the  "concise  formula  for  the  total  of  actions  and 
attributes;  .  .  .  out  of  relation  to  other  things,  he  is 
literally  nothing."  ^  "  Apart  from  his  surroundings  and 
relationships,"  says  Professor  Ritchie,  "  the  individual  is 
a  mere  abstraction,  a  logical  ghost,  a  metaphorical  specter, 
a  mere  negation."  ^  The  much-admired  individual,  self- 
centered  and  self-contained,  is,  indeed,  not  very  far  from 
the  strong  and  solitary  wild  beast. 

The  distrust,  not  to  say  hostility,  of  the  laissez-faire 
theorists  to  government  because  of  the  errors  or  abuses  of 
particular  governments  in  the  past  is  childish.  It  is  wholly 
wrong  to  take  the  position  that  because  governments  have 
made  mistakes  in  the  past,  or  because  their  agents  have 
sometimes  abused  the  powers  intrusted  to  them,  they  cannot 

*  Montague,  "Limits  of  Individual  Liberty,"  p.  57. 
'  "  Principles  of  State  Interference,"  p.  11. 


CRITICISM    OF   THE   LAISSEZ-FAIRE   DOCTRINE        293 

be  trusted  in  the  future;   or  that  because  sumptuary  laws 
are  wrong,  factory  and  sanitary  legislation  must  be  wrong 
as  well;    or  that  because  municipally  constructed  sewers 
have  sometimes  produced  typhoid  fever,  cities  in  the  future 
should  leave  the  construction  of  their  sewer  systems  to  pri- 
vate enterprise ;  or  that  because  some  poor  laws  have  proved 
ineffective,  the  state  should  abandon  altogether  the  policy 
of  poor  relief.     The  laissez-faire  writers  never  tire  of  parad- 
ing and  exaggerating  the  mistakes  which  governments  have 
made  in  the  past,  and  when  they  are  all  collected  and  put 
on  exhibition,  they  constitute  what  to  some  is  a  strong 
indictment  against  state  interference.     "  The  state  lives  in  Mistakes 
a  glass  house,"  observes  Huxley ;  ' '  we  see  what  it  tries  to  do,   state%x- 
and  all  its  failures,  partial  or  total,  are  made  the  most  of.   aggerated 
But   private   enterprise   is   sheltered    under   good   opaque  Laissez- 
bricks  and  mortar.     The  public  rarely  knows  what  it  tries  ^^""^  '^'^- 

\  _  -'  vocates 

to  do  and  only  hears  of  its  failures  when  they  are  gross 
and  patent  to  all  the  world."  ^  We  may  well  ask,  with  Lord 
Pembroke,  "What  would  private  enterprise  look  like  if 
its  mistakes  and  failures  were  collected,  and  pilloried  in  a 
similar  manner  ?"  ^  It  may  readily  be  admitted,  observes 
an  able  writer,  that  government  is  weak  and  inefficient 
at  times  and  obedient  to  private  interests,  but  it  does  not 
follow  from  such  an  admission  that  government  ought  to 
be  made  "weaker,  corrupter,  and  more  inefficient  by  prac- 
ticing the  illogical  doctrine  of  laissez  faire."  ^ 

The  laissez-faire  assumption  that  each  individual  knows  The  indi- 
his  own  interests  better  than  the  state  can  know  them,  and  '^j'^"^^  ^^^ 

'  always 

is  therefore  the  best  judge  of  what  is  good  for  him  and  if  the  Best 
left  to  himself  will  follow  those  interests,  is  true  only  in  a  hfs  Own 
limited   sense,   and   is   still   less   true  of  classes.     This   is  i^^terests 
readily  admitted  by  some  individuahst  writers  like  Mill.^ 
Sidgwick,  an  unusually  fair  and  judicial  writer,  discussing 

'  "Critiques  and  Addresses,"  p.  9.  ^  "Liberty  and  Socialism,"  pp.  39-40. 

'  H.  C.  Adams,  "  Relation  of  the  State  to  Industrial  Action." 
*  See  Mill's  "Essay  on  Liberty." 


294  THEORIES   OF    STATE    FUNCTIONS 

this  assumption,  well  says :  "But  it  seems  to  me  very  doubt- 
ful whether  this  can  be  granted;  since  in  some  important 
respects  the  tendencies  of  social  development  seem  to  be 
rather  in  the  opposite  direction.  As  the  appliances  of 
life  become  more  elaborate  and  complicated  through  the 
progress  of  invention,  it  is  only  according  to  the  general 
law  of  division  of  labor  to  suppose  that  an  average  man's 
ability  to  judge  of  the  adaptation  of  means  to  ends,  even 
as  regards  the  satisfaction  of  his  everyday  needs,  is  likely 
to  become  continually  less."  *  If  every  man,  observes  the 
Belgian  writer  Laveleye,  could  see  clearly  and  judge 
accurately  of  his  own  interests,  rights,  and  duties,  then 
pursue  them,  and  do  voluntarily  what  he  ought  to  do  and 
nothing  that  he  ought  not  to  do,  the  necessity  for  state 
intervention  would  disappear  and  we  should  enjoy  the 
reign  of  liberty."  But  the  very  point  of  the  matter  is  that 
ignorant  people  cannot  take  precautions  against  dangers 
of  which  they  are  ignorant.  No  one  lives  in  a  badly 
drained  house,  drinks  water  polluted  with  sewage,  or  eats 
adulterated  food  because  his  interest  leads  him  to  do  so, 
but  generally  because  he  is  ignorant  of  the  real  character 
of  the  service  or  article  which  he  consumes  or  because  he 
cannot  help  himself.^  Not  only  is  the  individual  not 
always  a  competent  judge  of  his  own  interests  as  an  eco- 
nomic consumer,  but  in  affairs  of  personal  conduct  he  is 
often  not  to  be  trusted,  particularly  in  matters  relating  to 
his  health  or  safety  or  moral  welfare.  The  truth  is  the  state 
may  be  a  better  judge  of  a  man's  intellectual,  moral,  or 

*  "  Political  Economy,"  p.  416.  Compare  also  Mill,  "  Political  Economy,"  vol.  II, 
p.  537,  who  accepts  the  proposition  that  the  consumer  is  a  competent  judge  of  com- 
modities only  with  "numerous  abatements  and  exceptions."  "The  individual," 
says  Mill,  "  is  likely  to  be  the  best  judge  (though  even  this  is  not  universally  true) 
of  the  material  objects  produced  for  his  use,  but  there  are  other  things  which  are 
chiefly  useful  as  tending  to  raise  the  character  of  human  beings,  of  the  value  of 
which  the  individual  is  incompetent  to  judge." 

'  "Le  Gouvernement  dans  la  Democratic,"  p.  24. 

'  Cf.  Jevons,  "The  State  in  its  Relation  to  Labor,"  p.  43. 


CRITICISM    OF   THE   LAISSEZ-FAIRE   DOCTRINE        295 

physical  needs  than  he  is  himself,  and  it  may  rightfully 
protect  him  from  disease  and  danger  against  his  wishes 
and  compel  him  to  educate  his  children  and  to  live  a 
decent  life. 

The  practice  of  all  modern  states  is  in  fact  in  harmony  Practice 
with    this   view.     Few,  if  any,  governments    leave   their  Govern-'" 
citizens  to  find  out  for  themselves  what  is  healthy  food;  ^^^^^ 
what  physicians,  surgeons,  and  druggists  are  qualified  to  the  Lais- 
practice  ;  or  what  conditions  of  work  are  safe  or  dangerous.  DocSlne 
Most  governments  prescribe  conditions  under  which  certain 
dangerous  occupations  shall  be  carried  on  and  refuse  to 
permit  them  to  be  dispensed  with  even  with  the  consent 
of   those  who  would    be   endangered.      All   governments 
prohibit  the  exercise  of  certain  callings  of  a  quasi-public 
character,   except  by  persons  who  are   able  to  show  by 
examination  or  otherwise  that  they  possess  the  requisite 
qualifications  to  insure  the  public  against  incompetent  ser- 
vice.    Evidence   of   competency   is  generally   required  of 
physicians,    apothecaries,    engineers,    pilots,    and  even  of 
barbers  and  plumbers.     The  state  goes  even  further  and 
undertakes    to  protect  the  individual  against  the  conse- 
quences of  his  own  acts,  as  where  it  limits  the  number  of 
hours  of  labor  in  mines  and  factories,  and  prohibits  women 
and  children  from  engaging  in  certain  injurious  trades. 

Much  of  the  individualistic  distrust  of  government  is  objection 
due,   as  Sir   Frederick   Pollock  has   pointed   out,   to   the  J^edRlgu- 
failure    to    distinguish    between    centralized    government  lation  not 
and  local  self-government.*      A  good  deal  of  the  objection  Reguia- 
which  the  individualists  urge  against  government  would  **°" 
be  justified  if  it  were  centralized  government  that  is  com- 
plained of,  but  the  objection  is  not  always  well  founded, 
when   directed   against   local   government,   through   local 
bodies  directly  under  the  eye  of  the  people  concerned. 
There    is   a   vast    difference,    for    example,    between    the 
"nationalization"   and  the   "municipalization"  of  an  in- 

'  "History  of  the  Science  of  Politics,"  p.  123. 


tion 


296  THEORIES    OF   STATE    FUNCTIONS 

dustry,  and  there  is  an  equal  difference  between  national 
regulation  of  individual  conduct  and  control  by  locally 
elected  bodies.  Manifestly  the  same  objection  cannot  be 
urged  against  a  local  health  regulation  that  would  be  appli- 
cable to  a  national  quarantine  law.  Individualists,  like- 
wise, in  their  wholesale  condemnation  of  government 
usually  overlook  the  distinction  between  government, 
popularly  constituted  and  controlled,  and  bureaucratic, 
irresponsible  government.  It  is  difficult  to  see,  in  many 
cases,  why  a  public  utility  owned  by  the  government,  but 
under  immediate  control  of  the  people  of  the  locality, 
should  be  more  feared  and  distrusted  than  one  under  the 
management  of  a  private  company  not  amenable  to  public 
opinion  or  popular  control, 
fnade-  Spencer's  doctrine  of  "negative  regulation,"  which  would 

Regula-  limit  the  function  of  the  state  to  redressing  rather  than 
preventing  wrongs,  would  in  many  instances  defeat  the 
ends  of  the  state.  Thus,  if  the  only  security  provided  by 
the  state  against  unsanitary  plumbing,  adulterated  foods, 
incompetent  practitioners  of  medicine  or  apothecaries, 
consisted  of  the  right  to  sue  the  negligent  plumber,  the 
dishonest  milk  dealer,  or  the  incompetent  physician  or 
druggist,  instead  of  requiring  plumbers  to  give  bonds  for 
the  efficient  discharge  of  their  duties,  physicians  and 
druggists  to  pass  examinations  or  otherwise  furnish  evi- 
dence of  capacity,  milk  to  be  inspected,  etc.,  the  pro- 
tection afforded  would  in  many  cases  be  inadequate,  since 
the  injury  could  not  be  redressed  by  a  mere  suit  for  dam- 
ages. We  agree  with  Sir  Frederick  Pollock  that  If  it  is  nega- 
tive and  proper  regulation  to  say  that  a  man  shall  be  pun- 
ished for  building  his  house  in  a  city  so  that  it  falls  into 
the  street,  it  cannot  be  positive  and  improper  regulation 
to  say  that  he  shall  so  build  it  that  it  will  not  appear  to 
competent  persons  likely  to  fall  into  the  city  street.  If  it 
is  purely  negative  regulation,  and  therefore  proper,  to  pun- 
ish  a   man   for  communicating  an   infectious  disease  by 


CRITICISM   OF   THE   LAISSEZ-FAIRE   DOCTRINE        297 

neglect   of  common   precautions,    it   is   not   improper   to 
require  precautions,  where  the  danger  is  known  to  exist, 
without  waiting  for  somebody  to  be   actually  infected/ 
The  individualists  show  a  distorted  notion  of  liberty  when 
they  contend,  as  they  do  in  effect,  that  the  individual  has 
a  right,  if  he  wishes  to  keep  his  premises  in  an  unsanitary 
condition,  to  discharge  his  sewage  where  he  will,  to  spread 
disease  among   his  neighbors,  to   sell   unwholesome   food 
and  drugs  to  whomsoever  will  buy.     If  the  state  has  the  Duty  of 
right  and  duty  to  protect   by  preventive  measures  the  to^r^g^^Jnt 
individual   against  violence  and   fraud,    it  has   the   same  injury  as 
right   and    duty   to    protect    him   against  acts    the    con-  redress  it 
sequences  of  which  will  be  to  inflict  upon  him  injuries 
which  cannot  be  redressed.     There  is,  as  Huxley  well  says, 
no  very  great  difference  between  the  claim  of  an  individual 
to  go  about  threatening  the  lives  of  his  neighbors  with  a 
pistol,  and  his  claim  to  keep  his  premises  in  a  condition 
which  threatens  the  health  and  lives  of  his  fellow  men.^   The 
same  is  true  of  the  right  and  duty  of  the  state  to  protect 
the  individual  against  the  dangers  incident  to  modern  in- 
dustrial processes,  such  as  those  resulting  from  dangerous 
machinery,  from  bad  ventilation,  from  unsanitary  work- 
shops, from  fire,  and  even  from  unfair  contracts  of  labor.  No  such 
The  freedom  of  contract  is  a  taking  phrase,  as  has  been  uni^^j^gj 
aptly  remarked,  and  to  many  it  is  a  conclusive  argument  Freedom 

....  .  I  of  Con- 

agamst  state  intervention  in  industrial  matters;  but  when  tract 
it  refers  to  an  agreement  between  a  capitalist  and  an  igno- 
rant laborer  who  is  at  the  mercy  of  his  employer,  there  is 
no  equality.  The  doctrine  of  freedom  has  no  sanctity  in 
such  cases.  There  is  really  no  illegitimate  interference  with 
the  freedom  of  contract  when  the  state  undertakes  to  pre- 
scribe the  conditions  under  which  contracts  shall  be  entered 
into  between  parties  one  of  whom  is  really  not  on  a  free 
and  equal  footing  with  the  other. 

'  "History  of  the  Science  of  Politics,"  p.  125. 

^  "Administrative  Nihilism,"  in  his  "Critiques  and  Addresses,"  p.  10. 


298 


THEORIES   OF   STATE   FUNCTIONS 


Laissez- 
faire 
Doctrine 
is  Sound 
within 
Certain 
Limits 


Nevertheless,  when  all  is  said  against  the  laissez-faire 
doctrine  that  can  be  said,  it  must  be  admitted  that  up 
to  a  certain  point  the  weight  of  evidence  is  on  its  side. 
The  proposition  that  the  individual  is  the  best  judge  of 
what  contributes  to  his  own  happiness  and  that  he  will 
prosper  most  under  a  system  of  liberty  and  free  compe- 
tition is  in  most  cases  a  sound  one  and  ought  in  practice, 
as  Sidgwick  and  Cairnes  have  shown,  to  be  deviated  from 
only  in  special  cases  where  there  are  strong  empirical 
reasons  for  believing  that  the  general  assumption  is  not 
true.  The  doctrines  of  the  individualists,  while  in  many 
cases  productive  of  harm,  have  not  been  entirely  without 
a  good  effect.  They  have,  as  an  able  economic  writer  has 
observed,  "taught  the  people  not  to  confound  public 
morality  with  a  state  church,  public  security  with  police 
activity,  or  public  wealth  with  government  property." 
They  have  "taught  men  that,  as  society  develops,  the  in- 
terests of  its  members  became  more  and  more  harmoni- 
ous; in  other  words,  that  rational  egoism  and  rational 
altruism  tend  to  coincide."  ^  The  principal  fault  with 
them  has  been  their  disposition  to  exaggerate  the  com- 
pleteness of  this  coincidence  in  the  existing  imperfect 
stage  of  human  development,  and  in  assuming  that 
freedom  will  do  everything  for  society,  economically  and 
morally. 


Socialism 
regards 
the  state 
as  a 
Positive 
Good 


IV.    THE   SOCIALISTIC   THEORY 

Directly  opposed  to  the  laissez-faire  theory  of  state  func- 
tions is  what,  for  lack  of  a  more  suitable  term,  we  m.ay  call 
the  socialistic  theory,  which  contends  for  a  maximum 
rather  than  a  minimum  of  government.  The  supporters 
of  this  theory,  instead  of  distrusting  the  state  and  looking 
upon  it  as  an  evil  whose  functions  should  be  restricted 
to  the  narrowest  possible  limits,  regard  it  as  a  supreme 
and  positive  good;  and  hence  its  mission  should  include  the 


*  Hadley,  "  Economics,"  p.  14. 


THE   SOCIALISTIC   THEORY  299 

promotion  of  the  common  economic,  moral,  and  intellec- 
tual interests  of  the  people.     "A  sociaHst,"  says  Professor 
Ely,  "is  one  who  looks  to  society  organized  in  the  state  for 
aid  in  bringing  about  a  more  perfect  distribution  of  eco- 
nomic goods  and  an  elevation  of  humanity;   the  individu- 
alist regards  each  man,  not  as  his  brother's  keeper,  but  as 
his  own,  and  desires  every  man  to  work  out  his  own  salva- 
tion, material  and  spiritual.*     It  must  not  be  understood,  The  Dif- 
however,  that  the  advocates  of  state  socialism  attach  any  tlnTs^of 
less  importance  to  individual  freedom  than  do  the  individ-  Exten- 
ualists.     On  the  contrary,  they  regard  it  as  all  important 
and  differ  from  the  individualists  only  in  holding  that  it 
can  be  better  secured  through  state  action  than  through 
the  laissez-faire  policy,  which  permits  unrestricted    com- 
petition. 

Those  who  advocate  a  wide  extension  of  state  activ-  Extreme 
ity  may  be  grouped  into  several  classes  according  to  °*^^  *^** 
the  nature  and  extent  of  the  role  which  in  their  opinion 
the  state  should  play.  First,  there  are  the  extreme  so- 
cialists, v/ho  advocate  collective  ownership  and  manage- 
ment of  all  industries,  including  land  and  capital,  and  the 
instruments  of  production  and  transportation.  They 
would  substitute  state  management  of  industry  in  the 
place  of  private  management,  and  joint  ownership  of  the 
instruments  of  production  in  the  place  of  individual 
ownership,  thus  making  of  the  state  a  vast  compulsory 
cooperative  commonwealth  in  which  the  means  of  produc- 
tion, distribution,  and  exchange  are  under  the  control  of 
government.^  Under  such  a  system  the  state  would  be- 
come the  principal  owner  of  the  wealth  of  the  country, 

•"Any  legislation,"  says  Bruce  Smith,  "which  attempts  the  equalization  of 
social  conditions,  that  is,  such  as  involves  interference  by  the  state  beyond  the  limits 
at  which  that  interference  is  necessary  to  secure  equal  liberties  or  equal  oppor- 
tunities, is  socialism."     "  Liberty  and  Liberalism,"  p.  618. 

*  Cf.  J.  S.  Mill,  "Fortnightly  Review, "  April,  1879;  Ely,  "  Socialism  and  Social 
Reform,"  p.  10;  Rae,  "Contemporary  Socialism,"  pp.  379,  399;  Hadley,  "Eco- 
nomics," p.  15;  Flint,  "Socialism,"  p.  16. 


300 


THEORIES   OF   STATE    FUNCTIONS 


Demands 
of  Pure 
Socialism 


and  there  would  be  no  private  property  except  perhaps 
in  things  actually  used  by  each  individual.*  Socialism  of 
the  present  time,  says  an  able  writer  on  the  subject,  extends 
the  state's  intervention  from  those  industrial  undertak- 
ings it  is  best  fitted  to  manage  well  to  all  undertakings  of 
whatever  character,  and  from  the  establishment  of  those 
securities  for  the  full  use  of  men's  energies  to  the  attempt 
to  equalize  in  some  way  the  results  of  their  use  of  them. 
It  may  be  less  shortly  described  as  aiming  at  the  progres- 
sive nationalization  of  industries  with  a  view  to  the  pro- 
gressive equalization  of  incomes.^ 

Some  extreme  socialists,  indeed,  would  have  the  state 
guarantee  work  to  everybody,  lend  them  money  without 
interest,  furnish  them  with  the  implements  of  labor,  build 
houses  for  them,  give  them  farms,  strike  bargains  for  them, 
provide  pleasures  for  them,  and  in  fact  supply  all  their 
wants,  economic,  social,  intellectual,  or  otherwise.'  The 
socialists  of  the  United  States  in  their  national  platform 
demand  that  the  machinery  of  production  shall  be  owned  by 
the  people  in  common;  that  the  national  government  shall 
obtain  possession  of  the  mines,  railroads,  canals,  telegraphs, 


'  Socialists,  however,  refuse  to  identify  socialism  with  communism  or  with  pa- 
ternalism or  state  socialism.  Communism,  they  maintain,  stands  for  the  holding 
of  all  things  in  common,  while  socialism  emphasizes  community  of  industry,  pro- 
duction, and  distribution  only.  Moreover,  socialism,  they  say,  does  not  mean  a 
mere  expansion  of  state  functions  such  as  is  implied  in  the  notion  of  paternalism. 
Socialists  do  not  favor  increasing  governmental  control  merely  for  the  sake  of 
adding  power  to  the  government,  but  rather  because  they  believe  the  individual 
would  have  more  freedom  than  he  now  has.  Their  idea  of  the  state  is  rather  that 
of  a  fraternal  cooperative  commonwealth  than  a  paternal  state.  The  socialists  of 
Germany,  for  example,  were  bitter  opponents  of  the  state  socialism  of  Bismarck, 
which  they  asserted  did  not  aim  at  the  social  and  economic  amelioration  of  the 
people,  but  rather  at  the  extension  of  the  power  of  the  bureaucracy.  In  England, 
where  democracy  has  made  greater  headway  than  in  Germany,  the  distinction  be- 
tween socialism  and  what  is  called  state  socialism  is  not  so  sharp.  The  socialism 
of  the  English  Fabian  society,  for  example,  is  in  reality  what  is  called  state 
socialism. 

^  Rae,  "Contemporary  Socialism,"  p.  399. 

3  Cf.  Adams,  "  Relation  of  the  State  to  Industrial  Action,"  p.  475. 


THE   SOCIALISTIC   THEORY  301 

telephones,  and  other  means  of  pubHc  transportation  and 
communication,  which  shall  be  operated  on  the  coopera- 
tive plan  under  the  control  of  the  federal  government; 
that  the  municipal  governments  shall  obtain  possession 
of  the  local  railways,  ferries,  waterworks,  gas  works,  elec- 
tric light  plants,  and  all  industries  requiring  municipal 
franchises,  to  be  operated  on  the  cooperative  plan  under 
municipal  control;  that  inventions  shall  be  free  to  all; 
that  education  shall  be  free  and  compulsory;  that  the 
state  shall  assist  poor  school  children  with  food,  clothing, 
and  books;  and  that  employment  on  the  public  works 
shall  be  provided  by  the  state  for  the  unemployed/ 

The  principal  arguments  advanced  in  favor  of  the  social-  Argu- 
istic  state  arfe   the  following:    Under  the  present  system  paToJof 
of   economic    organization,    the    laboring    man    does   not   Sociai- 
receive  the  fruits   of  his   toil.     A  large   part    goes  to  re- 
ward capital    or   to   pay   for    the   services   of    those   who 
direct  and  superv-ise  the  employment  of  labor,  or  to  specu- 
lators and  middlemen,  and  too  Httle  to  those  who  are  the 
real  producers.^     In  short,  society  under  the  present  system 
is  organized  in  the  interests  of  the  rich  and  leads  to  grave 
inequalities   of  wealth   and    of  opportunity.      The  means  Present 
of    production    are    being    monopolized   by   the  few   who  unjusTto 

Toilers 

*  For  various  socialistic  programmes,  see  the  appendix  to  Kirkup's  "  History  of 
Socialism."  The  Knights  of  Labor,  an  organization  with  ends  somewhat  socialistic, 
demands  the  establishment  of  bureaus  of  labor  statistics ;  free  public  lands  for  settlers ; 
laws  for  the  protection  of  the  health  and  safety  of  those  engaged  in  the  mining,  manu- 
facturing, and  building  industries;  compulsory  arbitration  of  labor  disputes;  laws 
for  the  protection  of  children  in  factories ;  a  tax  on  incomes;  government  savings 
banks;  government  ownership  of  telegraphs,  telephones,  and  railroads ;  a  coopera- 
tive industrial  system;  etc.,  —  in  order  to  "secure  the  toilers  a  proper  share  of  the 
wealth  they  create ;  more  of  the  leisure  that  properly  belongs  to  them ;  more  social 
advantages ;  more  of  the  benefits,  privileges,  and  emoluments  of  the  world,  —  in  a 
word,  all  those  rights  and  privileges  of  enjoying,  appreciating,  defending,  and  per- 
petuating the  blessings  of  good  government."  The  Socialist  Workingmen's  Party 
of  Germany  demands  free  and  universal  education  by  the  state,  legislation  for  the 
protection  of  the  health  and  lives  of  workingmen,  sanitary  control  of  workingmen's 
dwellings,  inspection  of  mines,  more  eflfectual  employers'  liability  acts,  etc. 

^  Graham,  "Socialism,"  p.  185. 


302  THEORIES   OF   STATE   FUNCTIONS 

exploit  the  masses;  if  indeed  private  competition  has  iiot 
been  largely  eliminated  through  the  organization  of  trusts 
and  combinations.  The  state  should  therefore  take  con- 
trol of  all  the  land  and  capital  or  means  of  production 
now  being  used  for  the  exclusive  benefit  of  the  owning 
class.  Under  the  individualistic  regime  industrial  compe- 
tition has  become  so  fierce  that  the  industrially  weak 
have  no  chance  of  success  and  cannot  survive  in  competi- 
tion with  the  rich;  they  are  growing  relatively  poorer  and 
becoming  more  dependent  upon  the  employing  class,  while 
the  rich  are  growing  richer  and  becoming  more  independ- 
ent. The  theory  of  socialism,  it  is  argued,  is  founded  on 
principles  of  justice  and  right.  The  land  and  the  mineral 
wealth  contained  therein  should  belong  equally  to  all,  not 
to  a  few.  They  are  nature's  gift  to  the  human  race,  and 
ought  not  to  be  appropriated  by  the  few  any  more  than 
sunlight,  air,  or  water.  The  same  is  true  as  regards  the 
instruments  of  production.^ 
Socialism  Competition  under  the  present  system  not  only  leads 
oVthe^'^^'^  to  injustice  and  the  crushing  out  of  the  small  competitor, 
Principles  but  it  iuvolvcs  cnormous  economic  waste  and  extrava- 
gance in  the  duplication  of  services.  The  system  of  unre- 
stricted competition  leads  to  lower  wages,  overproduction, 
cheap  goods,  and  unemployed  workers.  The  only  remedy 
for  such  a  condition,  say  the  socialists,  is  the  abolition  of 
competition  and  the  substitution  of  the  cooperative  prin- 
ciple, under  which  equality  of  opportunity  and  equality 
of  reward  and  economy  of  production  will  be  secured. 
It  will  Under  the  socialistic  regime,  it  is  asserted,  a  higher  t^^pe  of 
rm^her  individual  character  will  also  be  produced  and  a  larger 
Type  of  degree  of  real  freedom.  Such  industrial  competition  as 
Character  wc  have  to-day  tends  to  beget  materialism,  unfairness,  dis- 
honesty, and  a  general  lowering  of  the  standard  of  indi- 
vidual character.  Man  is  naturally  weak  and  inclined  to 
depravity,  and  the  present  system  of  economic  individual- 

^  See  Kirkup,  "History  of  Socialism,"  p.  ii. 


THE   SOCIALISTIC   THEORY  303 

ism  serves  to  accentuate  his  weakness  and  dishonesty. 
He  needs,  therefore,  to  be  guided  and  aided  by  the  state 
and  protected  against  his  own  inherent  frailties. 

The  doctrine  of  socialism,   moreover,   is  really  in  har-  socialism 
mony  with  the  organic  theory  of  the  nature  of   the  state,  ^°^^  . 
which  teaches  that  society  is  an  organism,  not  a  mere  aggre-  Extent  is 
gation  of   individuals,  that  the  good  of  all  is  paramount  foifowed 
to  that  of  a  few,  and  that  in  order  to  secure  the  good  of  the  i°  Practice 
greatest  number  the  welfare  of  the  individual  as  such  must 
be  subordinated  to  that  of  the  many. 

Finally,  it  is  argued  by  the  socialists  that  the  state 
has  already  abolished  competition  in  certain  fields  and  in- 
troduced in  its  place  the  cooperative  principle  and  has 
demonstrated  its  success  as  an  industrial  manager  to  the 
entire  satisfaction  of  all  candid  and  thoughtful  men.  Gov- 
ernment management  and  control  of  the  postal  service, 
government  coinage,  government  ownership  and  operation 
of  railroads,  telegraphs,  mines,  and  other  industries  of  a 
public  nature  in  various  countries  have  all  established  the 
advantages  of  collective  m.anagement  over  private  manage- 
ment, and  thus  fully  justified  the  wisdom  of  the  principle 
of  socialism.  Then  why  should  the  state  not  go  further 
and  occupy  the  entire  field?  Why  should  it  not  organize 
all  labor  as  it  has  already  done  a  part,  and  apportion  the 
products  of  industry  on  the  basis  of  each  man's  rightful 
share  as  the  principles  of  justice  require?  ^  Collective 
ownership  and  management,  it  is  maintained,  is  thoroughly 
democratic;  indeed,  socialism  is  the  "economic  comple- 
ment of  democracy";  it  rests  upon  both  ethical  and  al- 
truistic principles  and  is  the  only  system  under  which 
efficiency  and  justice  in  production  can  be  secured  and  un- 
der which  a  full  and  harmonious  development  of  individual 
character  can  be  realized.^ 

^  See  Graham,  "Socialism,"  p.  ir. 

^  Kirkup,  "History  of  Socialism,"  pp.  10-12.  For  a  summary  of  the  good  sociai- 
ism  has  already  accomplished,  see  Kirkup,  ch.  11. 


304 


THEORIES   OF    STATE   FUNCTIONS 


Argu- 
ments 
against 
Socialism 


False 
Premises 


Against  the  socialistic  theory  the  chief  argument  ad- 
vanced is  the  difficulty,  if  not  the  impossibility,  of  realizing 
in  practice  the  system  which  it  advocates.  The  ideas  of 
the  extreme  socialists  are  in  many  respects  fantastic  and 
would  prove  impracticable,  both  on  account  of  reasons  of  an 
economic  character  and  for  others  which  are  inherent  in 
the  constitution  of  human  nature  itself.  There  have 
always  been  some  men  who  believed  that  the  state  was 
both  omniscient  and  omnipotent  and  that  it  has  only  to 
issue  a  decree  saying,  "Let  misery  and  inequality  be  abol- 
ished, "  and  it  will  be  done  forthwith. 

The  socialistic  theory  starts  from  a  false  premise  when  it 
maintains  that  private  property  in  land  and  the  instru- 
ments of  production  is  not  only  wrong  morally  but  also 
economically.  To  substitute  collective  ownership  for  pri- 
vate ownership,  even  if  it  were  practicable,  would  tend  to 
destroy  one  of  the  most  powerful  mainsprings  of  human 
endeavor  and  the  chief  incentive  to  individual  effort  and 
industry.  Take  away  the  right  of  the  individual  to  ac- 
quire property  and  to  accumulate  the  product  for  his  own 
use,  say  the  opponents  of  socialism,  and  you  make  an  end 
of  all  progress  by  destroying  the  incentive  to  labor.  The 
saying  of  Sir  James  F.  Stephen  that  to  try  to  make  men 
equal  by  altering  social  arrangements  is  like  trying  to  make 
the  cards  of  equal  value  by  shuffling  the  pack,  is  hardly 
less  true  of  all  efforts  to  make  men  equal  in  economic 
matters.  Socialism,  says  Laveleye,  rests  on  the  principle 
that  the  able,  industrious,  and  provident  should  share 
with  the  stupid,  the  idle,  the  improvident,  whatever  may 
be  obtained  as  the  reward  of  their  energy  and  virtues.^ 
It  is  a  system,  says  another  critic,  "which  requires  the 
state  to  do  work  it  is  unfit  to  do  in  order  to  invest 
the  working  classes  with  privileges  they  have  no  right  to 


''■  "  Contemporary    Review,"   April,    i{ 
denied  by  the  advocates  of  socialism. 


p.  551.     This,    however,  is   stoutly 


THE   SOCIALISTIC   THEORY  305 

get."  ^  The  doctrine  that  each  man  should  be  rewarded 
according  to  his  labor,  when  labor  is  understood  to  mean 
simply  work  with  one's  hands  without  reference  to  capital 
or  skill,  cannot  be  defended  upon  any  rational  principle  ot 
justice.^  Even  if  account  should  be  taken  of  the  difference 
in  the  productive  capacity  and  hence  of  the  value  of  the 
service  of  different  workers,  the  practical  difficulty  in  apply- 
ing any  such  rule  of  distinction  would  be  insurmountable 
under  a  system  of  socialism.  On  what  principle  would  it 
be  possible  to  distribute  the  rewards  of  industry  to  each 
worker  according  to  his  share  in  producing  when  he  works 
side  by  side  with  machines,  with  unskilled  and  skilled 
laborers,  and  with  directors  and  supervisors?  Socialism  The  Pure 
will  never  be  practicable  until  there  is  a  fundamental  change  state  an" 
in  human  nature,  to  some  of  whose  deepest  principles  it  impos- 
runs  counter.  We  agree  with  Professor  Ely  that  it  is  a 
"  glorious  ideal,  but  it  will  never  become  a  reality  this  side 
of  the  golden  gates  of  Paradise."  The  state  may  provide 
for  the  poor  and  the  infirm,  and  even  furnish  employment 
to  the  idle,  but  it  ought  not  to  take  away  from  the  former 
the  motive  for  making  voluntary  provision  for  old  age  or 
from   the  latter  the  incentive  to    search  for  work.^ 

One  error  of  the  socialist  is  that  he  entirely  overesti-  Socialism 
mates  the  state's  capacity  and  efficiency.     He  assumes  that  ^^l^^^i 
every  business  managed  by  a  joint  stock  concern  can  be  as  Capacity 
well  managed  by  the  state  and  ought  therefore  be  taken  state 
over  and   operated   by  it   in    the  interest  of    the    public. 
But  experience  and  reason  are  against  such  a  view.     Gov- 
ernment in  most  cases  is  better  fitted  to  restrain  the  evils 
of  monopoly  and  regulate  the  conduct  of  a  business  which 
affects  the  public  interest  than  it  is  to  manage  the  busi- 
ness itself.     The  more  numerous  and  diverse  the  functions 
of  government,  the  greater  the  difficulties.    The  business  of 

'  Rae,  "Contemporary  Socialism,"  p.  379. 

*  Cf.  Graham,  "Socialism,"  p.  xxxiv. 

*  Cf.  Rae,  "Contemporary  Socialism,"  p.  392. 
POL.  SCI.  —  20 


3o6 


THEORIES   OF   STATE   FUNCTIONS 


It  fs  Con- 
trary to 
Sound 


a  joint  stock  company  is  usually  limited  to  one  or  a  few 
activities,  while  under  a  socialistic  regime  the  business 
activities  of  the  state  would  be  legion.  It  goes  without 
saying  that  there  are  some  industries  that  can  be  better 
conducted  by  private  management  and  to  overcharge 
the  government  with  the  conduct  of  the  whole  complex 
volume  of  industrial  activity  in  a  modern  society  would 
lead  to  inefficiency,  if  not  to  a  complete  breakdown/  The 
problem  of  providing  all  the  necessaries  of  life  for  the  people 
of  a  populous  state,  of  managing  the  labor  and  distributing 
the  products,  would  be  a  task  which  no  government  could 
perform  satisfactorily."  Under  a  socialistic  regime,  more- 
over, nothing  would  be  produced  except  as  it  pleased  those 
Economic    in  authority.     It  would  be  necessary  to  persuade  the  state 

Principles  ,  i  •  i 

to  produce  many  thmgs  that  are  now  produced  under 
private  competition.  Production  would  no  longer  be  regu- 
lated by  the  law  of  supply  and  demand,  but  it  would  de- 
termine demand,  contrary  to  every  existing  principle  of 
poHtical  economy.^  Besides,  the  calculations  of  the  gov- 
ernment would  constantly  be  upset  by  various  circum- 
stances.* Everything  would  depend  on  the  pleasure  of 
the  governors.  A  diminution  in  the  quantity  and  quality 
of  production  might  be  expected  to  result  from  the  with- 
drawal of  the  stimulus  of  private  incentive.  Government 
managers  would  be  languid  and  without  interest  in  the 
result,  laborers  would  be  without  incentive  and  the  state 
timid,  from  which    there  would    result,   says  one   writer, 

*  Speaking  of  the  inefficiency  of  government  management,  Rae  observes  that 
"the  languor  of  the  government  stroke  and  the  slow  mechanism  of  a  state  depart- 
ment are  unfavorable  to  an  abundant  production.  The  general  slackening  of  indus- 
try and  the  extinction  of  those  innumerable  sources  of  active  initiative  which  at 
present  are  so  busy  pushing  out  new  and  fruitful  developments  are  too  great  a  price 
to  pay  for  the  suppression  of  the  evils  of  competition.  To  effect  some  economies  in 
the  use  of  capital  we  damage  or  destroy  the  forces  by  which  capital  is  produced  and 
really  lose  the  power  to  save  a  penny."     "Contemporary  Socialism,"  p.  400. 

*  Compare  Robertson  in  Mackay's  "Plea  for  Liberty,"  ch.  i. 
'  Graham,  "Socialism,"  p.  162. 

*  McKechnie,  "The  State  and  the  Individual,"  P-  188. 


THE   SOCIALISTIC   THEORY  307 

"a  diminished  rate  of  progress,  decreased  production  of 
wealth,  with,  finally,  in  all  probability,  a  diffused  poverty, 
which,  besides  being  an  evil  in  itself,  is  one  that  threatens 
all  the  higher  human  interests."  ^ 

Finally,  socialism  would  involve,  not  an  enlargement,  but  it  would 
a  restriction  of  individual  freedom,  and  a  deterioration  of  Freedom^^ 
individual  character.     This  point  has  been  ably  empha-  instead  of 

...       More 

sized  by  Mill,  Spencer,  and  others.^  Under  a  socialistic  Liberty 
regime  society  would  have  to  be  organized  and  controlled 
to  some  extent  like  an  army.  In  the  absence  of  all  self- 
interest  and  incentive  individuals  would  have  to  be  disci- 
plined and  driven  to  the  discharge  of  their  duties,  and  in 
the  place  of  freedom  we  should,  according  to  some  writers, 
have  virtual  slavery.^  If  all  industry  and  commerce 
must  be  managed  by  a  central  authority  which  has  to 
calculate  and  regulate  everything,  observes  McKechnie, 
it  follows  that  all  deviations  from  the  appointed  and  ex- 
pected routine  on  which  these  calls  are  based  must  be 
strenuously  put  down.  No  travesty  of  a  healthy  state, 
McKechnie  concludes,  is  more  deplorable  than  a  prac- 
tical socialism  in  the  form  of  an  absolute  government  direct- 
ing with  inquisitorial  and  irresistible  sway  every  detail  of 

^  Graham,  "Socialism,"  p.  166. 

^  See  Spencer's  essay,  "The  Coming  Slavery,"  and  Mill,  "Political  Economy," 
vol.  II,  bk.  V,  ch.  II. 

^  This  is  the  opinion  of  W.  H.  Mallock,  a  well-known  English  writer  on  social- 
ism, who  says:  "Now  if  we  assume  that  the  socialistic  state  can,  by  some  means  or 
other,  secure  all  the  ablest  men  as  the  official  directors  of  the  labor  of  the  citizens 
generally,  there  is,  as  I  said  before,  nothing  inherently  impracticable  in  the  proposal 
to  guarantee  to  each  laborer  all  his  necessaries  and  his  comforts  in  any  case,  and 
secure  his  industrial  obedience  by  methods  the  same  as  those  by  which  military  obedi- 
ence is  secured  in  the  case  of  soldiers.  On  the  contrary,  this  method  is  one  which 
was  practiced  in  the  earliest  civilizations  known  to  us,  and  was  in  practical  operation 
for  thousands  upon  thousands  of  years.  It  built  the  walls  of  Babylon.  It  built 
the  pyramids  of  Egypt.  It  raised  the  monstrous  stones  of  Baalbec.  It  was  the 
method  of  slavery.  It  did  not  receive  its  deathblow  in  the  civilized  world  till  this 
country  inflicted  it  within  the  lifetime  of  living  men.  It  is  this  method  of  securing 
and  controlling  ordinary  labor  that,  on  Sidney  Webb's  admission,  any  system  which 
is  truly  socialistic  would  reintroduce." 


3o8 


THEORIES   OF    STATE    FUNCTIONS 


The  Idea 
of  Pure 
Socialism 
has  never 
been  real- 
ized in 
Practice 


Growth 
of  State 
Socialism 


On  the 

Continent 
of  Europe 


human  life."  '  Such  are  some  of  the  arguments  that  have 
been  advanced  by  various  writers  against  the  theories  of 
socialism  as  popularly  understood. 

The  ideas  of  socialism  in  the  form  in  which  it  has  been 
described  above  have  never  been  realized  in  practice  in  any 
state.  The  Amana  and  Icarian  communities  in  Iowa,  the 
Shakers  and  the  Harmony  Society  of  Pennsylvania,  and 
various  others  represent  attempts  to  realize  in  practice 
communistic  principles;  but  they  all  resulted  in  failure 
and  left  behind  only  "buried  hopes  and  aspirations." 
These  communities,  says  Rae,  led  to  the  same  results  as  in 
England,  namely,  a  slackening  of  industry  and  a  deteriora- 
tion of  the  general  level  of  comfort." 

While  socialism  in  its  extreme  form  has  never  been  at- 
tempted by  any  modern  state,  all  states  perform  various 
functions  that  are  socialistic  in  character,  some  more  than 
others;  and  one  of  the  marked  political  tendencies  of  the 
time  has  been  the  drift  in  this  direction. 

The  movement  has  been  strongest  on  the  continent  of 
Europe,  particularly  in  Germany,  since  the  founding  of  the 
empire.  There  the  state  operates  and  controls  many  busi- 
nesses that  in  America  are  left  to  private  enterprise,  and 


*  "The  State  and  the  Individual,"  pp.  177,  192-193;  compare  also  the  estimate 
of  SirErskineMay  ("  Democracy  in  Europe,"  Introduction,  p.  Ixv),  who,  speaking  of 
the  socialistic  doctrine,  says:  "The  natural  effect  of  such  theories  would  be  to  repress 
the  energies  of  mankind;  and  it  is  their  avowed  object  to  proscribe  all  the  more 
elevated  aims  and  faculties  of  individuals.  .  .  .  The  individual  man  is  no  more  than 
a  mechanical  part  of  the  whole  community;  he  has  no  free  will,  no  independence  of 
thought  or  action.  Every  act  of  his  life  is  prescribed  for  him.  Individual  liberty 
is  surrendered  to  the  state;  everything  that  men  prize  most  in  life  is  to  be  taken  out 
of  their  hands.  Their  religion,  their  education,  the  management  of  their  families, 
their  property,  their  industry,  their  earnings,  are  dictated  by  the  ruling  powers. 
Such  a  scheme  of  government,  if  practicable,  would  create  a  despotism,  exceeding 
any  known  in  the  history  of  the  world."  But  obviously  we  have  here  a  confu- 
sion of  socialism  and  communism,  a  distinction  which  socialists  are  careful  to  insist 
upon.  It  is  but  fair  to  remark,  therefore,  that  much  of  the  criticism  quoted  above 
is  inapplicable  to  the  theories  of  socialism,  though  it  might  well  be  directed  against 
those  of  communism. 

"  "  Contemporary  Socialism,"  p.  402. 


THE   SOCIALISTIC   THEORY  309 

regulates  many  of  the  details  of  individual  conduct  that 
elsewhere  are  left  uncontrolled  by  the  state.  In  various 
countries  of  Europe  the  state  owns  and  operates  railroads, 
mines,  banks,  and  breweries;  monopolizes  the  manufacture 
of  certain  commodities  like  brandy,  tobacco,  and  gunpow- 
der; owns  and  operates  or  subsidizes  theaters  and  opera 
houses;  aids  and  encourages  literature,  science,  and  art; 
insures  people  against  sickness,  accidents,  and  old  age; 
owns  and  operates  wholly  or  in  part  the  instrumentalities 
of  communication  and  transportation;  and  through  the 
local  governments  manages  many  public  utilities  such  as 
waterworks,  gas  and  electric  light  plants,  and  street  rail- 
ways. 

In  England,  until  recently,  state  socialism  had  made  little  in 
headway,  but  in  recent  years  a  "profound  change  has  come  °^*° 
over  the  spirit  of  Enghsh  politics"  and  the  state  is  running 
fast  in  the  direction  of  socialism.  Indeed,  says  Laveleye, 
England  is  now  leading  the  nations  of  the  Old  World  in  this 
respect.  England  is  changing  from  the  old  trust  in  indi- 
vidualism and  liberty  to  a  new  trust  in  state  regulation  and 
from  the  French  doctrine  of  laissez-faire  to  the  German 
doctrine  of  state  socialism.^  During  the  last  few  years  the 
English  Parliament  has  enacted  a  large  volume  of  social 
legislation,  such  as  factory  acts,  health  legislation,  laws 
providing  dwellings  for  the  poor,  employers'  liability  acts, 
workingmen's  compensation  acts,  old  age  pension  acts, 
etc.,  while  the  local  governments  have  gone  farther  than 
those  of  any  other  country  toward  the  municipalization  of 
public  service  industries  such  as  the  water  and  light  sup- 
ply and  the  means  of  local  transportation.  Throughout 
England  to-day  the  cities  generally  own  and  operate  their 
own  gas,  electric  light,  and  water  systems;  in  many  cases 
they  own  and  manage  the  street  railway  utilities;  and  own 
public  washhouses,  libraries,  music  halls,  etc.  The  state 
now  operates  not  only  the  postal  service  but  also  the  tele- 

'  Compare  Rae,  "  Contemporary  Socialism,"  p.  347. 


3IO  THEORIES   OF   STATE   FUNCTIONS 

graph  and  to  a  large  extent  the  telephone  service,  operates 
a  parcels  post  system,  conducts  postal  savings  banks, 
and  performs  many  other  services  that  were  formerly 
left  to  private  enterprise.  Most  of  the  state  intervention 
in  England,  however,  has  been  in  the  interest  of  better 
moral  and  social  conditions  rather  than  for  the  promotion 
of  economic  interests.  Most  of  it,  in  short,  has  been 
guided  by  ethical  rather  than  by  economic  considerations. 
In  Austra-  In  some  of  the  English  colonies,  particularly  in  Australia 
^^  and  New  Zealand,  where  private  capital  has  been  lacking, 

the  activities  of  the  state  have  been  multiplied  to  an  extent 
not  equaled  anywhere  else  in  the  world.  There  a  large 
part  of  the  tillable  land  Is  owned  by  the  state  and  rented 
to  tenants;  the  coal  mines  and  forests  are  likewise  under 
state  control ;  so  are  the  railroad,  telegraph,  and  telephone 
systems;  there  is  also  a  government  parcels  post  system 
and  there  are  government  savings  banks.^  The  state  makes 
loans  to  farmers  at  low  rates  and  constructs  improved 
dwellings  for  worklngmen.  There  Is  a  system  of  state 
insurance,  not  only  against  death  and  old  age,  but  against 
loss  by  fire.  The  government  maintains  labor  bureaus  and 
a  system  of  compulsory  arbitration  in  labor  disputes;  reg- 
ulates the  hours  of  labor  In  various  occupations  and  In 
some  Instances  undertakes  to  regulate  the  wages  of  labor; 
constructs  public  works  by  direct  labor  rather  than  by  con- 
tract, and,  through  the  municipalities,  generally  owns  and 
operates  the  public  service  industries.  The  state,  in  short, 
approaches  more  nearly  the  socialistic  Ideal  than  any  other 
in  the  world.  It  is  avast  landlord  and  employer;  it  en- 
gages In  banking,  farming.  Insurance,  the  express  business, 
mining,  and  other  industries.  As  to  whether  the  good 
exceeds  the  evil,  there  is  a  wide  difference  of  opinion.^ 

*  There  are  but  five  private  savings  banks  in  Australia. 

*  For  a  valuable  study  of  the  subject,  see  W.  P.  Reeves,  "  State  Experiments 
in  Australia,"  vol.  2.  The  system  is  defended  by  Parsons  in  his  "Story  of  New 
Zealand"  and  criticised  by  Fairfield  in  Mackay's  "  Plea  for  Liberty." 


CHAPTER  X 
THE  TRUE  SPHERE  OF  THE  STATE 

I.     THE   ENDS   OR   PURPOSES   OF   THE   STATE 

Having  examined  the  principal  theories  concerning  the  What  is 
function  of  the  state,  we  come  next  to  inquire  what  is  its  of^the^ 
natural  and  proper  sphere.  Is  it  the  sphere  which  the  state? 
laissez-faire  theorists  have  marked  out  or  that  of  the 
socialists,  or  is  it  neither?  In  order  to  determine  what  is 
the  proper  domain  of  state  action  it  is  necessary  first  of  all 
to  determine  what  is  the  end  or'purpose  of  the  state.  It  is 
also  well  to  remember  at  this  point  that  the  functions  of 
government,  as  Mill  has  shown,  are  not  a  fixed  thing;  that 
they  are  much  more  extensive  in  an  advanced  state  of 
society  than  in  one  which  is  still  in  a  backward  state.  The 
fact  must  also  not  be  overlooked,  as  the  same  distinguished 
writer  has  truthfully  remarked,  that  "the  proper  limits  of 
the  functions  and  agency  of  government"  is  "one  of  the 
most  disputed  questions  both  in  political  science  and  in 
practical  statesmanship."  *  Any  conclusion,  therefore,  that 
we  may  reach  with  regard  to  the  subject,  unless  it  be  of  the 
most  general  character,  will  not  be  universally  accepted. 
Whether  the  state  should  do  this  or  that  can  only  be  an- 
swered, observes  Sir  Frederick  Pollock,  by  going  back  to  the 
old  question,  "What  does  the  state  exist  for?"  ^  Is  it  an 
end  in  itself  or  only  a  means  to  an  end? 

The  ancients  generally  considered  the  state  to  be  an  end  The 
rather  than  a  means  to  the  realization  of  an  end.     There  concep- 
was  hardly  any  realm  within  which  the  individual  was  con-  t>o° 

•  "Political  Economy,"  vol.  II,  p.  385. 

'  "History  of  the  Science  of  Politics,"  p.  124. 

3" 


312        THE  TRUE  SPHERE  OF  THE  STATE 

sidered  to  be  free  as  of  right;  no  part  of  his  life  was  ac- 
knowledged to  be  sacred  from  the  intrusion  of  the  state. 
The  old  Mosaic  law  regulated  almost  every  concern  of  his 
daily  life,  —  what  he  should  eat  and  when,  how  his  food 
should  be  cooked  and  served,  the  kind  of  clothes  he  should 
wear,  and  when  and  whom  he  should  marry,  etc.  Nor  was 
legislation  of  this  character  peculiar  to  the  Hebrews.  It 
was  common  among  the  Greeks  and  Romans  and,  to  a  less 
extent,  among  the  early  Germans.  In  short,  the  idea  of 
individual  interests  as  distinct  from  the  general  interests 
was  non-existent.^  The  individual  was  always  under  the 
eye  of  the  state;  his  conduct  was  regulated  and  his  life  de- 
termined for  him  with  such  minuteness  that  he  was  regarded 
as  existing  for  the  state  rather  than  the  state  for  him. 
Individual  freedom  was  overlooked  or  its  importance  mini- 
mized, while  the  state  was  exalted  and  glorified  as  if  it 
were  everything  and  the  individual  nothing.  Modern 
political  thought  and  practice,  however,  reject  the  view 
that  the  state  is  an  end  rather  than  a  means.  It  considers 
the  state  to  be  simply  an  institution,  an  agency  or  instru- 
mentality by  means  of  which  the  collective  ends  of  society 
may  be  realized,  instead  of  itself  being  the  end.^ 
View-  In  considering  the  ends  or  purposes  of  the  state  we  may 

Disdnc-"**  distinguish  between  its  ends  in  general,  and  the  particular 
tions  ends  of  a  given  state.     We  may  also  distinguish  between 

the  ultimate  ends  and  the  primary,  immediate   or   prox- 

'  Cf.  Laboulaye,  p.  107;   Esmcin,  "Droit  constitutionnel,"  p.  377. 

^  Compare  Bluntschli,  "Allgemeine  Staatslehre,"  bk.  V,  ch.  i.  Some  modern 
political  writers,  however,  regard  the  state  as  an  end  in  itself.  See,  e.g.,  Ritchie, 
("Principles  of  State  Interference,"  p.  102),  who  remarks  that  since  the  best  life 
can  be  realized  only  in  the  state,  the  state  is  not  a  mere  means  but  an  end  in  itself. 
Substantially  the  same  opinion  is  expressed  by  Villey  in  his  "Role  de  I'fitat,"  pp. 
8-9,  and  by  Hegel  in  his  "Philosophic  des  Rechts."  Willoughby  ("Nature  of  the 
State,"  p.  317)  remarks  that  whether  the  state  is  an  end  or  a  means  depends  on  the 
viewpoint.  From  the  purely  individualistic  viewpoint  it  is  only  a  means,  an  instru- 
mentality, or  an  ex])edient  through  which  the  highest  possible  development  of 
humanity  is  obtained.  But  if  the  state  is  considered  as  an  institution  distinct  and 
apart  from  the  citizens  who  compose  it,  it  is,  of  course,  he  says,  an  end  in  itself. 


THE   ENDS   OR   PURPOSES   OF   THE   STATE  313 

imate  ends.*  The  German  writer  Holtzendorff,  in  his  Hoitzen- 
"Principien  der  PoHtik,"  distinguished  between  the  real  conTep- 
ends  of  the  state  {die  realen  Staatszwecke)  and  the  ideal  ends  tion 
{die  idealen  Staatszwecke).'^  The  real  ends  of  the  state,  he 
said,  are:  first,  the  development  of  the  national  power 
{der  nationale  Machtzweck) ;  second,  the  maintenance  of 
individual  liberty  {der  Freiheits-  oder  Rechtszweck) ;  and, 
third,  the  promotion  of  the  social  progress  and  civili- 
zation of  the  people  {der  Gesellschaftliche  Culturzweck) . 
In  short,  national  power,  individual  liberty,  and  the  civili- 
zation of  mankind,  stated  in  the  order  of  their  importance, 
according  to  Holtzendorff  are  the  real  ends  of  the  state. 
The  first  mentioned  is  the  primary  end;  the  last,  the  ulti- 
mate or  secondary  end.  Neither  conflicts  with  the  other, 
but  there  exists  harmony  of  purpose  between  them;  and 
the  great  mission  of  the  state  cannot  be  fully  realized  by 
neglecting  one  at  the  expense  of  the  other.^ 

Bluntschli  followed  Holtzendorff  in  rejecting  as  too  narrow  Opinion  of 
and  fruitless  the  "justice"  theory  {Theorie  des  Rechts-  fchu*" 
zweckes),  which  considers  the  end  of  the  state  to  be  merely 
the  maintenance  of  justice  among  men;  and  the  "  morality" 
theory  {Theorie  des  Sittlichkeitszweckes) ,  propounded  and 
exploited  by  Hegel,  which  regards  the  mission  of  the  state 
to  be  the  realization  of  the  moral  law.  Bluntschli,  like 
Holtzendorff,  attaches  great  importance  to  the  "general 
welfare"  theory  {Theorie  des  Wohlfahrtszweckes),  though  he 
points  out  the  mischief  arising  from  the  lack  of  an  exact 
test  for  determining  what  constitutes  the  general  welfare. 
He  shows   that  it  has  been  the  cloak  for   covering  many 

•  On  the  distinction  between  the  ideal  and  the  real  ends  of  the  state,  see  Holt- 
zendorff, "Principien  der  Politik,"  ch.  7,  and  Bluntschli,  op.  cit.,  bk.  V,  ch.  2;  on 
the  distinction  between  the  ends  of  the  state  in  general  and  those  of  a  particular 
state,  see  Willoughby,  op.  cit.,  p.  309 ;  between  the  specific  and  general  purposes 
of  the  state,  see  Von  Mohl,  "  Encyklopadie  der  Staatswissenschaften,"  p.  77; 
between  primary,  ultimate,  and  secondary  ends,  see  Burgess,"  Political  Science  and 
Constitutional  Law,"  vol.  I,  p.  85. 

'  Chs.  7-8.  *  Ibid.,  ch.  ii,  "Die  Harmonie  der  Staatszweck." 


314        THE  TRUE  SPHERE  OF  THE  STATE 

political  sins  and  the  justification  for  many  arbitrary  and 
despotic  acts  of  the  state.  To  say  that  the  primary  and 
fundamental  purpose  of  the  state  is  the  furthering  of  the 
common  welfare  does  not  bring  us  very  near  to  the  solu- 
tion, since  it  does  not  tell  us  what  is  the  common  welfare. 
It  is  very  much  like  saying  that  the  duty  of  the  citizen  is 
to  keep  to  the  path  of  virtue,  without  telling  him  what 
virtue  is  or  where  the  way  lies.  Bluntschli  himself  dis- 
tinguishes between  the  "proper  and  direct"  and  the  "in- 
direct" ends  of  the  state.  The  former  relate  to  the  state 
itself  and  'consist  in  the  development  of  the  national 
strength  and  capacity  and  the  perfecting  of  the  national 
life;  the  latter  relate  to  the  individual  and  consist  in  the 
maintenance  of  his  freedom  and  security.*  These  ends, 
Bluntschli  maintains,  embrace  everything  that  can  properly 
be  regarded  as  legitimate  aims  of  the  state.  To  us,  however, 
the  development  of  the  national  pov/er  seems  rather  a  means 
than  an  end,  the  end  being  the  security,  liberty,  and  wel- 
fare of  the  people  composing  the  state. 
Views  of  Von  Mohl,  another  famous  German  writer  on  political 

Mohi  and  scicuce,  conccivcd  the  end  of  the  state  to  be  the  promotion 
Burgess  of  the  life  purposes  of  the  people  {die  Forderung  der  Lebens- 
zwecke  des  Volkes).^  Burgess  advances  the  view  that  the 
purposes  or  ends  of  the  state  may  be  classified  as  primary, 
secondary,  and  ultimate.  The  ultimate  end,  which  he  con- 
siders first,  is  (following  Holtzendorff  and  Bluntschli)  the 
perfection  of  humanity,  the  civilization  of  the  world,  and 
(following  Hegel)  the  establishment  on  earth  of  the  reign 
of  virtue  and  morality.  The  secondary  end  is  the  perfection 
of  the  principle  of  nationality  in  the  state  and  the  develop- 
ment of  the  national  genius  and  the  national  life.  The 
primary  end  is  the  establishment  of  government  and  lib- 
erty. To  state  them  in  their  historical  order,  they  are, 
he  says:  first,  the  organization  of  government  and  liberty, 

'  "  Allgemeine  Staatslehre,"  bk.  V,  ch.  4. 

'  "  Encyklopadie  der  Staatswissenschaften,"  pp.  71,  76. 


THE   ENDS   OR   PURPOSES   OF   THE   STATE  315 

SO  as  to  give  the  highest  possible  power  to  the  government 
consistent  with  the  highest  possible  freedom  in  the  indi- 
vidual; to  the  end,  secondly,  that  the  national  genius  of 
the  different  states  may  be  developed  and  perfected  and 
made  objective  in  customs,  laws,  and  institutions,  from  the 
standpoint  furnished;  by  which,  finally,  the  world's  civi- 
lization may  be  surveyed  upon  all  sides,  mapped  out,  trav- 
ersed, made  known  and  realized/  But  here  again  we  have 
what  seems  to  be  a  confusion  of  ends  with  means.  It  is 
difficult  to  see,  for  example,  why  the  establishment  of  gov- 
ernment should  be  considered  as  an  end  to  be  realized  rather 
than  the  means  through  which  ends  are  sought.  It  is,  as 
we  have  said,  the  testimony  of  nearly  all  writers  that  gov- 
ernment is  merely  the  agency  or  instrumentality  through 
which  the  ends  of  the  state  are  realized,  and  not  one  of 
the  ends  itself. 

Many  other  attempts  have  been  made  by  political  writ-  other 
ers  to  formulate  concisely  the  doctrine  of  the  ends  of  the 
state.  Locke,  for  example,  stated  that  the  end  of  govern- 
ment was  "the  good  of  mankind"  ^ —  "the  noblest  and 
briefest"  statement  of  the  purpose  of  government,  says 
Huxley,  that  was  ever  formulated.^  But  the  good  of  man- 
kind is  something  which  is  not  absolutely  fixed  for  all  men, 
regardless  of  conditions  and  circumstances,  and  there  is  far 
from  being  any  common  agreement  concerning  its  constitu- 
ent elements.  Professor  Ritchie,  in  his  "Principles  of  State 
Interference,"  conceives  the  end  of  the  state  to  be  simply 
the  realization  of  the  best  life  by  the  individual.*     Edmond 

*  "Political  Science  and  Constitutional  Law,"  vol.  I,  p.  89. 

'  "Two  Treatises  of  Government,"  sec.  229.  Elsewhere,  however,  Locke  said 
"the  great  and  chief  end  of  men  uniting  into  commonwealths  and  putting  them- 
selves under  government  is  the  preservation  of  their  property."     Ibid.,  ch.  9. 

'"Critiques  and  Addresses,"  p.  23. 

*p.  102.  Adam  Smith,  in  his  "Wealth  of  Nations"  (bk.  IV,  ch.  9)  declared 
that  the  state  had  but  three  great  duties :  first,  that  of  protecting  society  from 
the  violence  or  invasion  of  other  independent  societies ;  second,  that  of  protecting 
as  far  as  possible  every  member  of  the  society  from  the  injustice  or  oppression  of 
every  other  member  of  it,  or  the  duty  of  establishing  an  exact  administration 


Views 


3l6        THE  TRUE  SPHERE  OF  THE  STATE 

Villey,  a  recent  French  writer,  in  his  book  entitled  "Le  R6Ie 
de  I'Etat  dans  I'Ordre  economique,"  tays  "The  end  of  the 
state  is  first  of  all  the  maintenance  of  the  national  inde- 
pendence from  without  and  the  social  order  within;  then 
the  development  and  perfection  of  the  national  life,  in  a 
word,  progress."  ^  Laboulaye,  a  noted  French  scholar,  says 
"the  r6le  of  the  state  is  to  assure  to  the  individual  his 
entire  development  —  the  full  enjoyment  of  his  physical, 
religious,  intellectual,  and  moral  powers;  to  remove  ob- 
stacles and  restraints;  and  to  promote  the  general  progress 
by  multiplying  the  means  of  education  and  putting  it  at 
the  door  of  the  most  ignorant  and  the  poorest."^  John 
Stuart  Mill  declared  that  the  "proper  end  of  government 
was  to  reduce  the  wretched  wastes  due  to  the  neutraliza- 
tion of  the  best  efforts  and  talents  of  men  to  the  smallest 
possible  amount  by  taking  such  measures  as  shall  cause 
the  energies  now  spent  by  mankind  in  injuring  one  another 
or  in  protecting  themselves  against  injury,  to  be  turned 
to  the  legitimate  employment  of  the  human  faculties,  that 
of  compelling  the  power  of  nature  to  be  more  and  more 
subservient  to  the  physical  and  moral  good."  ^ 
View  of  If  one  more  attempt  to  formulate  a  general  statement 

Author  ^^  the  function  of  the  state  may  be  permitted,  I  would 
offer  the  following:  The  original,  primary,  and  immediate 
end  of  the  state  is  the  maintenance  of  peace,  order,  secur- 
ity, and  justice  among  the  individuals  who  compose  it. 
This  involves  the  establishment  of  a  regime  of  law  for  the 
definition  and  protection  of  individual  rights  and  the  crea- 
tion of  a  domain  of  individual  liberty,  free  from  encroach- 
ment either  by  individuals,  or  by  associations,  or  by  the 
government   itself.     No  state  which  fails  to  secure  these 

of  justice;  and,  third,  that  of  erecting  and  maintaining  certain  works  and  certain 
public  institutions  which  it  can  never  be  for  the  interest  of  any  individual  or  small 
number  of  individuals  to  erect  and  maintain. 

'  p.  i8.     See  also  pp.  xi  and  59. 

»  "La  Parti  Liberal,"  p.  6,  quoted  by  Michel,  in  "L'ld^e  de  I'Etat." 

*  "Political  Economy,"  vol.  II,  p.  603. 


THE   ENDS   OR   PURPOSES   OF   THE   STATE  317 

ends  can  justify  its  existence.  Whatever  else  it  may 
ignore,  it  cannot  neglect  these  considerations  without  fail- 
ing in  its  greatest  and  most  essential  purpose.  Secondly 
the  state  must  look  beyond  the  needs  of  the  individual  as 
such  to  the  larger  collective  needs  of  society — the  welfare 
of  the  group.  It  must  care  for  the  common  welfare  and 
promote  the  national  progress  by  doing  for  society  the 
things  which  the  common  interests  require,  but  which  can- 
not be  done  at  all  or  done  efficiently  by  individuals  acting 
singly  or  through  association.  This  is  what  HoltzendorfiF 
and  Bluntschli  must  have  meant  when  they  said  that  the 
end  of  the  state  was  the  development  of  the  national  ca- 
pacities and  the  perfection  of  the  national  life.  This  may 
be  called  the  secondary  end  of  the  state.  The  services 
embraced  under  this  head  are  not  absolutely  essential 
to  the  existence  of  society  but  they  are  desirable  and  are 
in  fact  performed  by  all  modern  states. 

Finally,  the  promotion  of  the  civilization  of  mankind  at 
large  may  be  considered  the  ultimate  and  highest  end  of  the 
state.  This  is  the  mission-of-civilization  theory  (Theorie  des 
Culturzweckes  des  Staates)  of  the  Germans,  which  has  been 
powerfully  defended  and  advocated  by  Holtzendorff,  Stein, 
Wagner,  Bluntschli,  and  others.  Thus  the  state  has  a  triple 
end :  first,  its  mission  is  the  advancement  of  the  good  of  the 
individual;  then  it  should  seek  to  promote  the  collective 
interests  of  individuals  in  their  associated  capacity;  and, 
finally,  it  should  aim  at  the  furthering  of  the  civilization 
and  progress  of  the  world,  and  thus  its  ends  become  univer- 
sal in  character.  Concerning  what  I  have  described  as  the 
primary  and  immediate  ends  of  the  state,  there  is  no  very 
wide  divergence  of  opinion  among  political  writers  or  states- 
men. But  as  regards  the  larger  ultimate  ends,  there  is  no 
such  unanimity  of  opinion.  While  all  are  agreed  that  it  is 
the  proper  function  and  duty  of  the  state  to  create  such 
conditions  as  will  enable  the  individual  to  realize  most 
completely  the  ends  of  his  existence  and  attain  the  greatest 


3i8 


THE  TRUE  SPHERE  OF  THE  STATE 


happiness  and  progress,  there  is  the  widest  variety  of 
opinion  concerning  the  amount  and  kind  of  state  action 
necessary  to  accomplish  this  end. 


Essential 
Functions 


Natural 
but  Un- 
necessary 
Functions 


II.     CLASSIFICATION    OF    STATE   FUNCTIONS 

The  functions  of  the  state  have  been  classified  by  many 
writers  as :  first,  those  which  are  necessary  and  indispensable; 
and,  second,  those  which  are  optional;  or,  simply  those 
which  are  essential  and  those  which  are  non-essential ;  or, 
again,  those  which  are  socialistic  and  those  which  are  not.^ 
They  may  be  classified  more  exactly  as:  first,  those  which 
are  necessary;  second,  those  which  are  natural  or  normal 
but  not  necessary;  and,  third,  those  which  are  neither 
natural  nor  necessary,  but  which  in  fact  are  often  per- 
formed by  modern  states.^  The  last  are  described  by 
some  writers  as  "doubtful"  functions.  What  are  called 
the  essential,  normal,  or  constituent  functions  are  such  as 
all  governments  must  perform  in  order  to  justify  their 
existence.  They  include  the  maintenance  of  internal  peace, 
order,  and  safety,  the  protection  of  persons  and  prop- 
erty, and  the  preservation  of  external  security.  They 
are  the  original  primary  functions  of  the  state,  and  all 
states,  however  rudimentary  and  undeveloped,  attempt  to 
perform  them.  They  embrace  the  larger  part  of  the  ac- 
tivities of  the  state  and  have  to  do  principally  with  the 
conservation  of  society  and  only  secondarily  with  social 
progress. 

By  natural  but  unnecessary  functions  are  meant  those 
which  the  state  may  leave  unperformed  or  unregulated 
without  abandoning  a  primary  duty  or  exposing  itself  to 
the  dangers  of  anarchy,  but  which  would  be  neglected  or 

'  Compare  Mill,  "Political  Economy,"  vol.  II,  p.  386  ;  and  Willoughby,  "Nature 
of  the  State,"  p.  310.  Woodrow  Wilson,  in  his  work  on  the  state,  classifies  them  as 
constituent  and  ministrant  functions,  sec.  1475. 

*  See  Villey,  "  Role  de  r]£tat  dans  I'Ordre  economique,"  pp.  59-61 ;  also  Jourdan, 
"R61edel'£tat,"p.  38. 


CLASSIFICATION   OF   STATE   FUNCTIONS  319 

at  least  not  so  well  performed  by  private  enterprise. 
Among  such  functions  may  be  mentioned  the  operation  of 
the  postal  service ;  the  construction  of  dikes,  levees,  canals, 
public  roads,  bridges,  and  irrigation  works,  and  works  of 
public  utility  generally;  the  maintenance  of  scientific  and 
statistical  bureaus;  the  erection  and  maintenance  of  light- 
houses, beacons,  and  buoys;  the  construction  of  harbors, 
wharves,  and  other  instrumentalities  of  trade  and  com- 
merce; the  care  of  the  poor  and  helpless;  the  protection 
of  the  public  health  and  morals;  elementary  education; 
the  regulation  of  many  trades,  businesses,  and  occupations 
which  are  affected  with  a  public  interest;  and  the  conduct 
of  various  undertakings  which  would  be  unprofitable  as 
private  ventures  but  which  are  required  by  the  common 
interest. 

Among  the  activities  of  the  state  which  are  neither  essen-  Functions 
tial  nor  natural,  but  which  are  not  a  matter  of  indifference  neither^* 
to  the  public  and  which  are  performed  by  some  states  as  Natural 

,,  ,  .  -11  ^°^  Neces- 

well  as  by  private  enterprise  and  at  less  cost,  are  a  great  swy 
variety  of  services  mainly  economic  and  intellectual, 
such  as:  the  conduct  of  railway  traffic;  the  telegraph  and 
telephone  service;  the  manufacture  and  distribution  of 
gas  and  electricity  for  lighting  purposes;  the  furnishing 
of  water  for  drinking  and  other  purposes  in  cities;  the 
maintenance  of  theaters,  pawn  shops,  bath  houses, 
and  lodging  houses;  the  encouragement  of  certain  indus- 
tries by  means  of  bounties,  protective  tariffs,  and  sub- 
ventions; the  planting  of  colonies;  the  encouragement  of 
immigration;  the  establishment  of  experiment  stations, 
liquor  dispensaries,  banks,  universities  of  learning,  hospi- 
tals, reformatories,  art  galleries,  museums,  zoological  and 
botanical  gardens;  the  erection  of  improved  dwellings 
for  working  people ;  the  making  of  loans  to  farmers ;  grants 
in  aid  of  railroads;  the  distribution  of  seeds  for  agricul- 
tural purposes;  the  conduct  of  the  business  of  insurance; 
the  granting  of  old  age  pensions ;  the  maintenance  of  em- 


320 


THE  TRUE  SPHERE  OF  THE  STATE 


Neither 
Individu . 
alism  nor 
Socialism 
the  Mod- 
ern View 


ployment  bureaus;  and  many  other  activities  too  numer- 
ous to  mention.  Under  this  head  also  may  be  included 
a  great  volume  of  regulatory  or  restrictive  legislation  deal- 
ing with  the  conduct  of  certain  trades  and  occupations 
which  are  affected  with  a  public  interest,  such  as:  railway 
traffic  and  means  of  communication;  mining;  manufac- 
turing; the  relations  between  employer  and  employees; 
the  conduct  of  dangerous,  offensive,  or  obnoxious  trades; 
the  censorship  of  the  press;  vaccination,  quarantine,  and 
sanitary  legislation;  laws  regarding  the  erection  of  build- 
ings in  cities;  laws  regulating  banking,  barbering,  baking, 
plumbing,  pawnbroking,  slaughtering,  and  many  other 
trades  or  businesses.^ 

The  first  group  of  activities  described  above  represent, 
according  to  the  individualistic  theories,  all  the  activities 
that  the  state  ought  to  undertake.  Anything  more  is 
superfluous  and  involves  an  infringement  upon  the  rights 
and  liberties  of  the  individual  and  cannot  therefore  be 
justified. 

III.  OBSERVATIONS  AND  CONCLUSIONS 

Regarding  the  merits  of  the  individualistic  and  social- 
istic theories  of  state  functions,  but  one  conclusion  is  pos- 
sible— neither  represents  the  modern  view  of  the  sphere 
and  duty  of  the  state.  As  Huxley  aptly  remarks,  in- 
dividualism and  socialism  are  out  of  court  so  far  as  the 
establishment  of  their  claims  is  concerned.  The  state  is 
neither  a  gendarme  nor  an  entrepreneur  of  public  felicity; 
neither  a  mere  police  contrivance  for  securing  order  nor 
an  "epicurean  engine  for  the  manufacture  of  general 
comfort."  ^  The  question  of  what  are  the  functions  of 
government,    observes    Huxley,    is    met    by    the    answer 

'  This  restrictive  legislation  is  classified  as  "unnatural, "  though  under  the  com- 
plex conditions  of  modern  times  it  may  well  be  questioned  whether  it  is  not  more 
natural  than  unnatural. 

*  Compare  Villey,  "  R61e  de  I'fitat,"  p.  14;  and  Montague,  "  Limits  of  Individual 
Liberty,"  p.  168. 


OBSERVATIONS   AND   CONCLUSIONS  321 

to  the  question  "What  ought  we  men  in  our  corporate 
capacity  to  do,  not  only  in.  the  way  of  restraining  that 
free  individuahty  which  is  inconsistent  with  the  existence 
of  society,  but  in  encouraging  that  free  individuality 
which  is  essential  to  the  evolution  of  the  social  organiza- 
tion? "  ^  Manifestly,  however,  it  is  impossible  to  draw  the 
boundary  line  between  legitimate  and  illegitimate  state 
interference  as  we  would  draw  a  boundary  line  on  a  map, 
because  it  is  a  line  which  must  change  with  the  altered 
conditions  and  needs  of  society.^  No  hard  and  fast  rule.  No  Fixed 
no  fixed  principle  governing  the  division,  can  be  laid  down ;  tween  Le- 
no  a  priori  solution  of  the  question  can  be  found.     In   the  g^imate 

.  ...  and  Ille- 

highly  complex  society  of  to-day  it  is  difficult  to  see  how  gitimate 
any  limit  can  be  set  to  the  extent  to  which  under  some  AcUon 
circumstances  the  action  of  government  may  be  carried. 
The  question  of  where  to  draw  the  line  between  those  things 
with  which  the  state  ought  and  ought  not  to  interfere  is 
one  which  must  be  left  to  be  decided  separately  for  each 
individual  case.^  Dogmatists  have  frequently  undertaken, 
on  the  basis  of  theoretical  discussions  of  the  nature  of  lib- 
erty, to  lay  down  what  things  the  state  ought  to  do  and  what 
things  it  ought  not  to  do  —  that  is,  how  wide  should  be 
the  province  of  government  and  how  wide  that  of  liberty; 
but  all  such  attempts  to  solve  the  problem  are  as  futile  as 
the  effort  to  discover  the  nature  of  light  by  discussions 
concerning  the  nature  of  darkness.  If  any  general  rule  may 
be  formulated,  it  must  be  deduced  from  a  consideration  of 
the  question  whether  the  purpose  of  state  intervention  in  a 

*  "Administrative  Nihilism,"  in  "Critiques  and  Addresses,"  p.  23. 

*  Compare  Leon  Say,  "Municipal  and  State  Socialism,"  p.  15.  It  is  impossible, 
says  Leroy-Beaulieu  ("  The  Modern  State  "),  to  determine  a  priori  the  sphere  of  the 
state  and  that  of  the  individual,  because  in  life  they  run  together  and  overlap 
each  other. 

'  "  It  follows,"  says  Cunningham  ("Politics  and  Economics,"  p.  136),  "that  we 
cannot  lay  down  a  definite  line  restricting  the  functions  of  the  state  and  making  all 
else  as  of  merely  private  and  individual  concern.     The  influence  of  the  state  perme- 
ates all  our  relations  even  those  of  the  personal  kind." 
POL.  SCI.  —  21 


322        THE  TRUE  SPHERE  OF  TME  STATE 

given  case  is  for  the  common  good,  whether  the  proposed 
action  is  Hkely  to  be  effective,  and,  if  so,  whether  it  can  be 
done  without  doing  more  harm  than  good.  If  a  proposed 
act  of  intervention  fulfills  these  conditions,  no  valid  objec- 
tion can  be  raised  to  it  because  it  violates  some  abstract 
principle  of  individual  liberty  or  some  doctrine  of  natural 
rights.  There  are  a  multitude  of  cases,  as  Mill  has  well  said, 
in  which  governments  with  general  approbation  assume 
powers  and  execute  functions  for  which  no  reason  can  be 
assigned  except  the  simple  one  that  they  conduce  to  the 
general  convenience;  and  he  might  have  added  that  no 
further  reason  ought  to  be  required.  It  is  manifest,  as  he 
points  out,  that  the  admitted  functions  of  government 
embrace  a  much  wider  field  than  can  easily  be  included 
within  the  ring  fence  of  any  restricted  definition,  and  it  is 
hardly  possible  to  find  any  ground  of  justification  com- 
mon to  them  all  except  the  comprehensive  one  of  general 
expediency.^ 

In  spite  of  our  disagreement  with  the  laissez-faire  theo- 
rists on  so  many  points,  we  agree  with  Mill  when  he  says 
that,  "Whatever  theory  we  adopt  respecting  the  founda- 
tion of  the  social  union,  and  under  whatever  political  insti- 
tutions we  live,  there  is  a  circle  around  every  human  being 
which  no  government,  be  it  that  of  one,  of  a  few,  or  of 
many,  ought  to  be  permitted  to  overstep;  there  is  a  part 
of  the  life  of  every  person  who  has  come  to  years  of  dis- 
cretion, within  which  the  individuality  of  that  person  ought 
to  reign  uncontrolled  either  by  any  other  individual  or 
by  the  public  collectively."  ^  Mill's  theory  that  this  circle 
should  include  all  that  part  which  concerns  only  the  life 
of  the  individual  and  which  does  not  afTect  the  interests  of 
others,  or  which  affects  them  only  through  the  influence  of 
moral  example,  is  undoubtedly  a  safe  proposition  so  far  as 
the  purely  repressive  sphere  of  the  state  is  concerned;  but 

'  "Political  Economy,"  vol.  II,  pp.  391,  392. 
*  Ibid.,  p.  568;  see  also  his  essay  on  Liberty. 


OBSERVATIONS   AND   CONCLUSIONS  323 

it  does  not  take  account  of  that  larger  liberty  which  com3S 
from  wisely  directed  state  aid  and  guidance  in  the  interests 
of  social  efficiency.  Moreover,  the  impossibility  of  draw- 
ing any  definite  lines  of  separation  between  the  "individual" 
and  "social"  spheres  necessarily  renders  all  such  proposi- 
tions of  little  practical  value. 

Upon  one  point,  most  men  are  now  agreed ;  namely,  that  Police 
the  state  has  a  higher  mission  than  the  mere  police  duty  of  the  Sole 
maintaining  peace,  order,  and  security  among  individuals,  Mission 
and  that  it  ought  to  do  more  for  its  citizens  than  merely  state 
prevent  them  from  robbing  or  murdering  one  another. 
Nothing,  as  Huxley  observes,  "can  be  less  justifiable  than 
the  dogmatic  assertion  that  state  interference  beyond  the 
limits  of  home  and  foreign  protection  must  under  all  cir- 
cumstances do  harm,"  ^  The  state  does  not  do  all  that  it  can 
or  ought  to  do  when  it  merely  protects  the  individual  from 
violence  and  fraud  and  leaves  him  alone  to  struggle  against 
ruinous  conditions  which  the  state  alone  is  capable  of  re- 
moving. In  the  beginning  of  human  societies,  as  Leroy- 
Beaulieu  has  pointed  out,  the  principal  function  of  the  state 
is  the  maintenance  of  defense  against  outside  aggression 
and  the  preservation  of  domestic  order  within;  but  in 
proportion  as  society  emancipates  itself  and  increases  in 
population  and  complexity,  as  it  passes  from  the  savage 
to  the  barbarous  and  from  the  barbarous  to  the  civilized 
stage,  a  wider  duty  than  that  simply  of  a  policeman  is 
laid  upon  it,  namely,  that  of  contributing  to  the  perfection 
of  the  national  life,  to  the  development  of  the  nation's 
wealth  and  well-being,  its  morality,  and  its  intelligence.^ 

•  "Administrative  Nihilism,"  in  his  "Critiques  and  Addresses,"  p.  10.  "The 
business  of  the  state,"  said  Thomas  Hill  Green,  "is  not  merely  the  business  of  a 
policeman,  of  arresting  wrong-doers,  or  of  ruthlessly  enforcing  contracts,  but  of  pro- 
viding for  men  an  equal  chance,  as  far  as  possible,  of  realizing  what  is  best  in  their 
intellectual  and  moral  natures." 

*  "The  Modern  State,"  ch.  5.  "We  are  often  told,"  says  Cunningham,  in  his 
"Politics  and  Economics"  (p.  140),  "that  the  business  of  the  state  is  to  protect 
person  and  property,  and  those  who  announce  this  view  think  they  have  found  a 


324        THE  TRUE  SPHERE  OF  THE  STATE 

It  is  legitimate  intervention  for  the  state  to  go  in  social 
reform  as  far  as  it  goes  in  judicial  administration,  namely, 
to   secure   for  every  man  as  effectively  as  possible  those 
essentials  of  rational  humane  living  which  are  really  every 
man's  right,  because  without  them  he  would  be  maimed, 
mutilated,  deformed,  and  incapable  of  living  a  normal  life. 
The  same  reason,  says  a  well-known  writer,  which  justified 
the  state  at  first  in  protecting  person  and  property  against 
violation,  justified  it  yesterday  in  abolishing  slavery,  justifies 
it  to-day  in  abolishing  ignorance,  and  will  justify  it  to- 
morrow in  abolishing  other  degrading  conditions  of  life.^ 
The  state        It  is  an  equally  legitimate  duty,  we  believe,  for  the  state 
encourage    ^^  cucouragc  Certain  of  those  higher  activities  of  life,  like 
Literature,  scieucc,  literature,  and  art,  which  contribute  to  the  civiliza- 

Art,  anl  .  -  .  ,  ,  i        i        i        •   i 

Science  tion  of  a  nation,  when  they  cannot  be  had  without  such 
aid  or  encouragement.  A  nation  which  does  not  produce 
and  does  not  care  for  such  things  can  have,  as  Lecky  has 
truly  remarked,  only  an  inferior  and  imperfect  civilization.^ 
State  expenditures  for  the  support  and  encouragement  of 
art  add  to  the  dignity  of  a  nation  and  to  the  education 
of  its  people ;  and  most  states  in  fact  appropriate  money  for 
maintaining  picture  galleries,  museums,  and  art  schools. 
We  agree  with  Edmund  Burke  that  the  state  "is  not  a 

formula  which  defines  the  range  of  state  action  pretty  closely,  .  .  .  but  it  is  idle  to 
contend  that  the  prime  function  of  a  state  is  to  defend  person  and  property  from 
physical  agents;  the  state  is  expected  to  intervene  to  protect  life  and  property  from 
human  agents  and  to  control  human  conduct,  but  not  always  or  generally  to  pre- 
vent and  relieve  misery  which  has  accrued  from  physical  conditions  unless  these 
physical  conditions  are  more  or  less  under  human  control." 

'  Cf.  Rae,  "  Contemporary  Socialism,"  pp.  396-397.  Compare  a  recent  state- 
ment of  Joseph  Chamberlain  that  "it  belongs  to  the  authority  and  duty  of  the 
state,  that  is  to  say  of  the  whole  people  acting  through  their  chosen  representatives, 
to  utilize  for  this  purpose  all  local  experience  and  all  local  organization  to  protect 
the  weak  and  to  provide  for  the  poor;  to  redress  the  inequalities  of  our  social  condi- 
tion and  of  the  struggle  for  existence,  and  to  raise  the  average  enjoyment  of  the 
majority  of  the  people."  Speech  of  April  25,  1888,  quoted  by  Bruce  Smith  in  his 
"Liberty  and  Liberalism,"  p.  62. 

"'Democracy  and  Liberty,"  vol.  I,  p.  275.  Cf.  also  Pollock,  "History  of  the 
Science  of  Politics,"  p.  125. 


OBSERVATIONS  AND   CONCLUSIONS  325 

partnership  in  things  subservient  only  to  the  gross  animal 
existence  of  a  temporary  and  perishable  nature,"  but  "a 
partnership  in  all  science,  a  partnership  in  all  art,  a  part- 
nership in  every  virtue  and  in  all  perfection."  Besides 
administering  justice  and  protecting  life  and  property,  it  is 
the  plain  duty  of  the  state  to  see  to  it  that  the  social  and 
economic  conditions  under  which  the  individual  is  compelled 
to  live  are  such  that  he  can  develop  his  latent  abilities,  make 
the  most  of  the  faculties  with  which  he  is  endowed  by  nature, 
and  thus  realize  fully  the  ends  of  his  existence.  In  short,  the  The  state 
state  should  be  an  instrument  of  economic  and  social  prog-  an°instru- 
ress.  It  should  be  the  representative  of  social  perpetuity,  ^^^^  o* 
says  Leroy-Beaulieu,  and  should  see  to  it  that  the  general  Economic 
conditions  of  rational  existence  do  not  deteriorate.  This  is  ^^°&^^^^ 
the  least  that  it  can  do,  and  it  ought  to  do  something  toward 
the  amelioration  of  those  conditions.^  It  ought,  declares  Du- 
pont-White,  to  take  the  lead  in  promoting  progress  because 
it  is  more  interested  than  the  individual,  has  higher  moral 
standards,  and  is  able  to  accomplish  larger  things  for  the  pub- 
lic good  than  can  be  accomplished  under  private  enterprise.^ 
The  eminent  Belgian  writer  Laveleye  takes  the  same 
view  of  the  mission  of  the  state  when  he  declares  that  it  is 
something  more  than  a  mere  organ  of  protection,  or  a 
guarantor  of  peace  and  order.  Its  mission,  he  says,  is 
to  establish  the  reign  of  justice,  which  would  not  only 
maintain  the  sanctity  of  contracts  but  would  aim  at  the 
realization  of  a  certain  ideal  and  would  modify  custom  and 
convention  in  order  to  attain  this  particular  ideal.  To 
establish  the  reign  of  law  and  of  justice  necessitates  an 
active  and  varied  intervention  by  the  state  in  the  social 
and  economic  arrangements  of  the  people,  where  many 
iniquities,  the  heritage  of  the  past,  still  survive.^ 

*  "The  Modern  State,"  p.  120. 

^"L'lndividu    et    I'lfitat,"    especially    chs.  5    and  7.      Compare  also  Michel, 
"L'Idfe  de  rfitat,"  pp.  572  ff. 

'"Le  Gouvernement  dans  la  Democratic,"  vol.  I,  p.  19. 


326 


THE  TRUE  SPHERE  OF  THE  STATE 


Regula- 
tion 

of  Private 
Monopoly 


Presump- 
tion in 
general 
against 
State  In- 
terference 


It  is  the  duty  of  the  state  to  enforce  contracts,  but  it  may 
also  be  its  duty  to  prescribe  the  conditions  under  which 
contracts  in  certain  cases  shall  be  valid  and  entitled  to  the 
protection  of  the  state,  especially  when  one  of  the  contract- 
ing parties  is  really  not  free.  The  state  ought  to  regulate 
or  supervise  the  conduct  of  industries  which  are  natural 
monopolies;  but  it  may  also  be  its  duty  to  take  the  business 
out  of  the  hands  of  private  individuals  and  operate  it  itself 
as  a  means  of  protecting  society  from  inefficient  service  and 
ruinous  prices.  The  state  ought  to  preserve  for  society  the 
obvious  advantages  of  industrial  competition;  and  if  free 
competition  becomes  impossible  through  the  policy  of 
laissez-faire  the  state  ought  to  intervene  and  protect  society 
against  the  evils  of  private  monopoly.^  And  experience 
has  abundantly  shown  that  the  policy  of  laissez-faire  will 
not  secure  industrial  freedom  nor  insure  equality  of  eco- 
nomic opportunity  in  the  highly  complex  societies  of  the 
present  day. 

Free  competition  under  modern  conditions  is  not  always 
a  beneficent  social  or  economic  principle.  When  it  forces 
the  level  of  trade  down  to  that  which  characterizes  the 
worst  men  in  it,  when  it  leads  to  inequality  of  opportunity 
instead  of  equality,  when  it  tends  to  actual  monopoly  and 
the  destruction  of  healthful  competition,  and  when  it  results 
in  poor  economic  service,  it  is  no  longer  a  good  but  an  evil. 
The  state  has  the  undoubted  power  as  well  as  the  duty  to 
determine  the  character  of  competitive  action  so  as  to  ren- 
der it  possible  for  the  best  men  instead  of  the  worst  to  set 
the  fashion  and  enable  society  to  adjust  its  productive 
processes  to  the  best  possible  form  of  organization. 

■  Nevertheless,  the  presumption  may  in  general  be  resolved 
against  state  interference,  whether  it  be  in  the  form  of  pro- 
hibition, regulation,  or  government  ownership.  There  is  a 
general  agreement  that  freedom  should  be  the  rule  and  in- 
terference the  exception ;  and  that  those  who  advocate  state 

*  Cf.  Graham,  "  Socialism,"  p.  xliii. 


OBSERVATIONS  AND   CONCLUSIONS  327 

interference  should  have  thrown  upon  them  the  burden  of 
proving  the  necessity  for  the  proposed  innovation,  or,  as  Mill 
says,  the  "onus  of  making  out  a  case."  ^  Huxley's  saying 
that  an  excess  of  abstention  offers  much  less  peril  than  an 
excess  of  intrusion  is  probably  a  safe  principle  to  follow. 
It  is  admitted  by  nearly  all  writers  that  the  state  should 
not  ordinarily  undertake  to  do  for  society  what  individuals 
themselves  can  do  as  well,  or  better,  or  what  when  done  by 
them  is  productive  of  better  results  for  all  concerned.  The 
advantages  which  result  from  leaving  the  individual  free 
from  restriction  in  economic  matters  so  long  as  the  rights 
and  interests  of  others  are  not  impaired  by  leaving  him  alone, 
are  manifest.  The  liberty  of  every  member  of  the  state  as 
a  man,  said  Kant,  is  the  first  principle  in  the  constitution  of 
a  rational  commonwealth.  Most  acts  of  state  intervention 
necessarily  involve  a  certain  restriction  of  liberty  upon  some 
class,  and  are  justifiable  only  when  they  secure  the  para- 
mount or  more  urgent  rights  of  others  and  perhaps  of  a 
more  numerous  class.  They  are  certainly  unjust  if  they 
hurt  the  one  class  without  benefiting  the  other. 

As  has  been  said,  the  policy  of  non-interference  should  be  Freedom 
the  leading  principle,  and  interference  the  exception;  in  all  Jnter^en- 
ordinary  cases  individuals  should  be  left  to  shape  their  con-  tion  the 
duct  according  to  their  own  judgment  and  discretion;  and 
no  interference  should  ever  be  made  on  any  special  or 
doubtful  grounds,  but  only  when  it  can  be  clearly  made 
out  that  it  will  be  productive  of  public  advantage.^ 

'  "Political  Economy,"  vol.  II,  pp.  561,  569;  Bruce  Smith,  "Liberty  and  Liber- 
alism," p.  448.  "Laissez-faire,  as  a  practical  rule,"  says  Cairnes  ("Political  Econ- 
omy," p.  251),  "is  incomparably  the  safer  guide  and  ought  not  to  be  departed  from 
so  long  as  there  remains  any  doubt  as  to  the  wisdom  of  the  proposed  departure." 

^  Cf .  McCuUoch,  "Principles  of  Political  Economy,"  p.  309;  and  Francis  A. 
Walker  in  the  Publications  of  the  American  Economic  Association,  vol.  II,  pp.  321, 
322.  After  arguing  that  the  burden  of  proof  should  be  on  the  extensionists  and  the 
presumption  against  state  action.  General  Walker  concludes  that  whether  the  state 
should  interfere  should  not  depend  upon  any  abstract  considerations  but  upon  the 
merits  of  each  individual  case ;  that  in  general  the  state  should  not  do  for  the 
individual  what  he  can  do  as  well  or  even  nearly  as  well  for  himself. 


Exceptioo 


328        THE  TRUE  SPHERE  OF  THE  STATE 

In  the  present  state  of  economic  and  social  development 
of  the  world,  however,  the  policy  of  laissez-faire  is  impos- 
sible, much  more  so  than  it  was  in  the  days  of  Adam  Smith 
and  the  other  English  individualists  of  his  time.  Profound 
economic,  social,  and  political  changes  have  conspired  to 
create  a  powerful  reaction  against  the  individualism  of  three 
quarters  of  a  century  ago/  The  modern  attitude  toward 
the  function  of  the  state  is  very  different  from  what  it  used 
to  be.  Everywhere  at  the  present  time,  instead  of  a  spirit 
of  hostility  to  the  extension  of  the  functions  of  the  state,  we 
find  an  increasing  clamor  for  more  government. 

Since  the  middle  of  the  nineteenth  century  there  has  been 
a  remarkable  tendency  among  civilized  states  to  push  their 
lines  farther  into  domains  heretofore  left  to  individual 
freedom.  It  should  be  remembered,  however,  that  the  so- 
called  state  Interference  of  the  present  century  differs  largely 
from  that  of  the  preceding  centuries  in  being  legislative 
rather  than  administrative  in  its  nature.  As  Professor  Seeley 
observes,  the  nineteenth  century  state  may  well  be  called 
the  "legislation  state."  ^  During  the  last  century  the  prov- 
ince of  executive  government  to  which  we  still  retain  our 
traditional  hostility  has  been  greatly  narrowed.  But  the 
revised  statutes  of  every  modern  state,  already  abnormally 
large,  continue  to  grow  in  bulk  with  each  passing  year. 
Whether  life  under  a  future  edition  will,  as  Herbert  Spencer 
maintains,  be  a  burden  and  the  status  of  the  individual 
that  of  a  slave,  is  a  question  which  need  not  worry  us.  We 
agree  with  Jevons  that,  notwithstanding  the  multiplicity  of 
statutes  under  which  the  modern  individual  must  live,  he  is 
an  infinitely  freer  and  nobler  creature  than  the  wildest  sav- 
age who  knows  no  restraints  but  those  of  nature,  yet  who  is 
always  under  the  physical  despotism  of  want.'     Liberty, 

'  See  Michel,  "L'Idee  de  I'fitat,"  bk.  V,  ch.  2,  on  the  "Dissolution  of  Individual- 
ism," where  the  reaction  against  individualism  and  the  progress  of  state  socialism 
are  fully  discussed. 

*  "Introduction  to  Political  Science,"  p.  146. 

'  "The  State  in  Relation  to  Labor,"  p.  14- 


OBSERVATIONS   AND    CONCLUSIONS  329 

like  everything  else,  is  good  or  bad  according  to  the  use 
which  is  made  of  it.  It  has  often  been  misunderstood, 
worshiped  as  a  "splendid  robed  goddess"  and  treated  as 
the  only  and  all-sufficing  end  of  the  state.  To  some  it 
has  been  a  priceless  boon,  to  others  a  curse.  But,  on  the 
whole,  it  may  be  doubted  whether  mankind  has  suffered 
more  in  the  past  from  an  excess  of  government  than  from 
an  excess  of  liberty.  Liberty  is  not,  as  Benjamin  Constant 
maintained,  the  end  of  all  human  associations,*  but  is  merely 
a  means  for  the  realization  of  the  fullness  of  individual 
life.  To  treat  it  as  an  end  in  itself  is  to  misconceive  the 
whole  problem.  It  is,  therefore,  beneficial  only  in  so  far 
as  it  helps  man  to  attain  that  other  freedom  which  is  an  end 
in  itself,  the  end  of  all  social  organization.^ 

*  "Principes  de  Politique,"  p.  145  (ed.  1861). 

^  Montague,"  Limits  of  Individual  Liberty,"  p.  182.  For  a  more  detailed  con- 
sideration of  this  subject,  see  an  article  by  the  writer  entitled  "  Government  and 
Liberty,"  in  the  "Yale  Review,"  February,  1907. 


CHAPTER  XI 

CITIZENSHIP  AND   NATIONALITY 

Suggested  Readings:  Cockburn  on  "Nationality,"  especially 
chs.  1-2;  Hall,  "International  Law,"  pt.  II,  ch.  5;  Howard,  "The 
German  Empire,"  ch.  8;  Meili,  "International  Commercial  and  Civil 
Law,"  Trans,  by  Kuhn,  sees.  41-44;  Moore,  "Digest  of  International 
Law,"  vol.  Ill,  sees.  372-487;  also  his  "American  Diplomacy,"  ch.  8; 
Morse,  "Citizenship  by  Birth  and  Naturalization,"  sees.  1-28,  131- 
206;  Oppenheim,  "  International  Law,"  vol.  II,  pt.  II,  ch.  3;  Report 
of  the  United  States  Commission  on  the  Subject  of  Citizenship,  Ex- 
patriation, and  Protection  Abroad,  House  Document  No.  326,  59th 
Congress,  2d  Session;  Munroe  Smith,  article  on  "Nationality"  in 
Lalor's  "  Encyclopedia  of  PoUtical  Science  ";  Van  Dyne,  "  Citizenship 
of  the  United  States,"  chs.  i  and  2;  Webster,  "Law  of  Citizenship," 
pp.  1-58;  Westlake,  "Private  International  Law,"  ch.  15;  Whar- 
ton, "  Conflict  of  Laws,"  vol.  I,  chs.  1-2;  Wheaton,  "International 
Law,"  Appendix  No.  i;  Wise,  "Treatise  on  American  Citizenship," 
chs.  I,  2,  4. 

I.     TERMINOLOGY   AND   DISTINCTIONS 

What  is  a  The  people  who  constitute  the  state  may  be  divided  into 
*  "*°  two  general  classes,  namely,  citizens  and  aliens.  The 
former  class  may  be  again  divided  into  those  who  possess 
full  civil  and  political  rights  and  those  who  do  not.  Aris- 
totle's definition  of  a  citizen  as  one  who  has  a  share  in  the 
government  of  the  state  and  is  entitled  to  enjoy  its  honors,^ 
does  not  therefore  accord  with  modern  theory  or  practice, 
which  hardly  anywhere  identifies  the  rights  of  citizenship 
with  political  privilege.     According  to  Vattel,  "citizens  are 

^  "Politics,"  bk.  Ill,  ch.  i.  Cf.  also  Burlamaqui,  who  defined  a  citizen  as  one 
"  who  shares  in  the  privilege  of  the  state  and  who  is  properly  one  of  its  members 
either  by  birth  or  in  some  other  manner,  all  others  being  simply  inhabitants  or 
cormorant  sojourners."     Quoted  by  Morse  in  his  "Citizenship,"  p.  40. 

330 


TERMINOLOGY   AND   DISTINCTIONS  331 

the  members  of  the  civil  society,  bound  to  this  society  by 
certain  duties  subject  to  its  authority,  and  equal  partici- 
pators in  its  advantages."  ^  "Citizens,"  said  the  Supreme 
Court  of  the  United  States  in  a  noted  case,  "are  mem- 
bers of  the  poHtical  community  to  which  they  belong. 
They  are  the  people  who  compose  the  state  and  who  in 
their  associated  capacity  have  established  or  subjected 
themselves  to  the  dominion  of  a  government  for  the  pro- 
motion of  their  general  welfare  and  for  the  protection  of 
their  individual  as  well  as  their  collective  rights."  ^ 

These  definitions,   however,   as  well   as  most  of  those  Distinc- 
found    in   the  books,  represent    the   popular,  rather  than  tween*' 
the  strictly  legal,  conception  of  citizenship.     In  the  United  "Citizens" 
States,  as  has  been  said,  "citizen"  and  "elector"  are  by  "Electors" 
no   means   convertible   terms.     In  all  of  the  states  there 
are  citizens  who  are  not  electors,  and  in  some  there  are 
electors    who    are    not    citizens.     The    possession    of    the 
electoral  privilege  is  not  essential  to  citizenship  and  there  is 
no  necessary  connection  between  them. ^   A  frequent  source 
of  confusion  and  misconception  would  be  removed  if  the 
term  "citizen"  were  restricted  to  those  who  enjoy  full  civil 
and  political  rights  and  a  different  term  employed  to  de- 
scribe all  others.^     Both  the  French  and  German  languages 
contain  suitable  terms  by  which  this  distinction  may  be 
expressed.     Thus  in  France  those  who  enjoy  full  civil  and 
political  privileges  are  described  by  the  term  citoyen,  while 

'  "Droit  des  Gens,"  bk.  I,  ch.  19. 

^  U.S.  V.  Cruikshank,  92  U.S.  542.  For  other  definitions,  see  Lawrence's 
Wheaton,  p.  892;  the  "English  and  American  Encyclopedia  of  Law,"  art.  "Citizen- 
ship"; and  Wise,  "Treatise  on  American  Citizenship,"  pp.  2-4.  "Nothing,"  said 
John  C.  Calhoun,  "is  more  difficult  than  the  definition  or  description  of  so  complex 
an  idea  as  a  citizen,  and  hence  all  arguments  resting  on  one  definition  in  such  cases 
almost  necessarily  lead  to  uncertainty  and  doubt.  But  though  we  may  not  be  able 
to  say  with  precision  what  a  citizen  is,  we  may  say  with  the  utmost  certainty  what 
he  is  not.     He  is  not  an  alien."     Quoted  by  Wise,  op.  cit.,  p.  5. 

*  Cf.  Mr.  Justice  Miller  in  Lang  v.  Randall,  4  Dill.  p.  425. 

*  This  is  essentially  the  same  distinction  that  the  French  formerly  made  between 
active  and  passive  citizens.     See,  e.g.,  the  French  Constitution  of  1791,  tit.  Ill,  ch,  i. 


332  CITIZENSHIP   AND    NATIONALITY 

all  Frenchmen  who  owe  allegiance  and  are  entitled  to  pro- 
tection regardless  of  their  civil  or  political  status  are  desig- 
nated as  nationaux}  In  like  manner  the  terms  Staats- 
The  Term  hiiTger  and  Staatsangehorige  are  employed  in  Germany.^  In 
jec"""  the  United  States  the  word  "subject"  has  been  suggested 
as  a  suitable  term  which  might  be  employed  to  describe  the 
unenfranchised  class,  but  it  is  open  to  several  objections. 
In  the  first  place,  it  is  a  part  of  the  modern  theory  of 
sovereignty  that  all  persons  within  the  jurisdiction  of  the 
state,  regardless  of  their  civil  or  political  status,  are,  legally 
speaking,  subjects,  and  hence  it  would  be  erroneous  to 
restrict  the  application  of  the  term  to  a  portion  only  of  the 
population.  In  the  second  place,  the  fact  that  the  term 
''subject"  has  been  associated  historically  with  the  theories 
of  feudalism  and  absolutism,  and  that  it  has  been  and  still 
is  employed  to  describe  the  relation  between  a  hereditary 
monarch  and  those  over  whom  he  rules,  has  caused  the 
term  to  be  looked  upon  with  disfavor  in  states  having  the 
popular  form  of  government,  as  descriptive  of  a  status 
which  is  inconsistent  with  republican  institutions.^  As 
descriptive  of  a  strict  legal  status,  however,  the  term 
"subject"  is  as  applicable  in  republics  as  in  monarchies, 
and  but  for  its  historical  associations  no  valid  objection 
could  be  urged  against  it.  The  employment  of  this  term 
to  describe  the  status  of  the  inhabitants  of  the  insular 
possessions  of  the  United  States  certainly  ought  not  to 

'  For  the  distinction  between  "citizens"  and  "nationals,"  see  Morse,  "Citizen- 
ship," p.  124;  Fcelix,  "Droit  international  prive,"  bk.  I,  p.  54;  Cordogan,  "La 
Nationalite,"  p.  6;  and  the  French  Code  Civil,  bk.  1,  title  I,  sec.  VII. 

*  Howard,  " The  German  Empire,"  p.  134;  Holtzendorflf,  "Encyklopadie  der 
Rechtswissenschaft,"  vol.  II,  p.  527. 

^  Compare  the  opinion  of  the  United  States  Supreme  Court  in  the  case  of  Minor 
V.  Happersett,  21  Wall.  162,  where,  in  distinguishing  between  the  terms  "citizen," 
"inhabitant,"  and  "subject,"  the  court  said:  "  'citizen'  is  now  more  commonly  em- 
ployed, however,  and  as  it  has  been  considered  better  suited  to  the  description  of  one 
living  under  a  republican  government,  it  was  adopted  by  nearly  all  the  states  upon 
their  separation  from  Great  Britain  and  was  afterwards  adopted  in  the  Articles  of 
Confederation  and  in  the  constitution  of  the  United  States." 


THE   ACQUISITION    OF   CITIZENSHIP  ^^^ 

be  objectionable.^  It  also  suitably  describes  the  members 
of  Indian  tribes;^  and  formerly  it  might  have  appropriately 
been  employed  to  describe  the  slave  class  and  to  a  less 
extent  the  class  of  free  negroes.^ 

II.     PRINCIPLES  GOVERNING  THE  ACQUISITION  OF  CITIZENSHIP 

The   two   general   sources   of   citizenship   are   birth    or  The  "jus 
descent,  and  formal  grant  or  conferment  by  the  state      The  n"?^nd 
acquisition  of  citizenship  by  birth  is  determined  by  one  of  "JusSoii" 
two  principles  or  by  a  combination  of  both.      The  oldest  cipies 
of  the  two  is  commonly  known  as  the  jus  sanguinis,  accord- 
ing to  which  the  nationality  of  the  child  follows  that  of  the 
parents  or  one  of  them.     The  other  is  that  of  the  jus  soli 
or  jus  loci,  according  to  which  nationality  is  determined  by 
the  place  of  birth,  irrespective  of  the  citizenship  of  the 
parents.^      The   former   principle   was   the   one   generally 
observed  by  the  ancients  in  determining  nationality  and 
allegiance  and  was  incorporated  into  the  Roman  law.     It 
also  became  a  part  of  the  law  of  the  early  Germans  after  the 
downfall  of  Rome.     With  the  rise  of  feudalism,  however, 
emphasizing  as  it  did  the  doctrine  of  personal  allegiance 
of  subject  to  sovereign,  followed  by  the  growth  of  the  idea 
of  territorial  sovereignty,  the  place  of   birth  rather  than 
blood  or  kinship  came  to  be  regarded  as  the  decisive  factor 

*  The  attorney-general  of  the  United  States  in  his  argument  in  the  insular  cases 
maintained  with  ability  that  the  inhabitants  of  the  insular  possessions  were  subjects 
rather  than  citizens.  But  owing  to  the  fact  that  the  term  is  "foreign  to  our  legal 
system,  and  alien  to  our  trend  of  political  thought,"  the  word  "national"  has,  he 
said,  been  suggested  as  one  which  "fits  the  case  more  accurately  and  bears  with  it 
no  unpleasant  inference  of  inferiority  or  servitude  to  an  individual."  F.  R.  Coudert, 
Jr.,  "  Columbia  Law  Review, "  January,  1902.  See  also  Moore,  "  Digest  of  Interna- 
tional Law,"  sec.  379.  See  also  the  Report  on  the  subject  of  citizenship,  expatria- 
tion, and  protection  abroad,  H.  Doc.  No.  326,  59th  Cong.,  2d  ses.,  to  be  referred 
to  hereafter  as  the  Report  of  the  United  States  Citizenship  Commission. 

*  Wheaton,  "International  Law,"  ed.  by  Lawrence,  p.  899. 

'  Opinion  of  Chief  Justice  Taney  in  Scott  v.  Sanford,  19  How.  438. 

*  Compare  Cockburn,  on  "Nationality,"  pp.  6  flf.;  and  Burgess,  "Political 
Science  and' Constitutional  Law,"  vol.  I,  p.  223. 


334  CITIZENSHIP  AND   NATIONALITY 

in  determining  nationality.*  The  jus  soli  rule  was  also 
strengthened  by  the  spread  of  the  feudal  idea  that  birth 
tended  to  create  a  relationship  between  the  individual  and 
the  land  to  which  he  was  attached.  In  time,  therefore,  the 
jus  soli  became  the  law  of  the  continent  of  Europe.  It  was 
introduced  into  England  at  the  time  of  the  Conquest.^ 
The  "reception"  of  the  Roman  law  in  northern  Europe  in 
the  later  Middle  Ages,  however,  led  to  the  displacement  of 
the  jus  soli  rule  for  that.of  the  jus  sanguinis;  and  the  latter 
in  time  became  dominant  throughout  the  greater  part  of 
Europe,  and  spread  to  Latin  America,  where  it  prevails  for 
the  most  part  to-day. 

According  to  the  jus  sanguinis  in  its  pure  form,  children, 
as  has  been  said,  take  the  nationality  of  their  parents  without 
regard  to  the  place  of  birth.  If,  therefore,  the  father  is  a 
citizen  or  subject  of  the  state  where  the  birth  takes  place, 
the  children  are  citizens  or  subjects;  if  he  is  an  alien,  the 
children  are  aliens.  The  law  of  Austria,  for  example,  de- 
clares that  "citizenship  is  inherent  in  the  children  of  Aus- 
trian citizens  by  virtue  of  birth."  ^  The  French  law 
declares  that  all  persons  born  abroad  of  French  fathers 
shall  be  considered  French  citizens.  The  Italian  law 
likewise  treats  as  citizens  all  children  whose  fathers  are 
citizens.^  A  similar  rule  prevails  in  many  other  states. 
According  to  the  principle  of  the  jus  soli  children  born 
abroad  of  citizens  are  aliens  in  respect  to  the  state  of  which 
their  parents  are  citizens,  though  according  to  the  jus  san- 
guinis they  would  be  citizens;    and,  conversely,  those  born 

*  Stoicesco,  "Etude  sur  la  Nationalite,"  p.  286;  Morse,  " Citizenship,"  pp.  12, 
15 ;  Webster,  "  Law  of  Citizenship,"  p.  50. 

'Compare  Munroe  Smith,  art.  "Nationality,"  in  Lalor's  "Encyclopedia  of 
Political  Science,"  vol.  II,  p.  944.  Coke,  "Commentary  on  the  Early  Laws  of  Eng- 
land," observed  that  "there  are  three  incidents  to  a  subject  born;  first,  that  the 
parents  be  under  the  actual  obedience  of  the  king;  second,  that  the  place  of  his  birth 
be  within  the  king's  dominions;  and  third,  the  time  of  his  birth."  Quoted  by  Law- 
rence in  his  edition  of  Wheaton,  p.  895. 

'  Civil  Code,  sec.  28.  *  Ibid.,  art.  4. 


THE   ACQUISITION   OF   CITIZENSHIP  335 

within  the  territory  of  a  given  state  of  alien  parents  are  citi- 
zens according  to  the  jus  soli  rule,  but  aliens  according  to 
the  jus  sanguinis.  The  result  is  numerous  conflicts  and  Conflicts 
cases  of  double  nationality  as  between  states  which  employ  the^^wo 
diff^erent  rules/  England  and  the  United  States  follow  the  Principles 
doctrine  of  the  jus  soli  with  regard  to  the  nationality  of 
children  born  of  alien  parents  within  their  territory,  but 
that  of  the  jus  sanguinis  as  regards  children  born  of  their 
own  citizens  or  subjects  abroad.^  France,  on  the  contrary, 
follows  the  jus  sanguinis  rule  for  all  purposes  and  treats 
as  citizens  children  of  French  parents  wherever  born. 
Thus,  a  child  born  in  the  United  States  of  French  parents 
would,  according  to  the  law  of  the  United  States,  be  a  citi- 
zen of  the  United  States,  jure  soli;  but  according  to  French 
law  it  would  be  a  citizen  of  France,  jure  sanguinis,  thus 
giving  rise  to  a  case  of  double  nationality.  Conflicts  of 
jurisdiction,  however,  are  usually  decided  by  the  practice 
of  states  in  declining  to  assert  their  claims  in  such  cases  so 
long  as  the  citizen  whose  status  is  in  dispute  remains  out- 

*  "The  occurrence  of  cases  of  double  nationality  acquired  at  birth  is  due  mainly 
to  the  fundamental  difference  which  exists  between  those  countries  whose  law  is 
derived  mainly  from  feudal  principles,  and  those  countries  whose  law  comes  more 
directly  from  Roman  sources,  the  former  regarding  the  place  of  birth  as  the  determin- 
ing factor  in  constituting  the  relation  of  sovereign  and  subject, while  the  latter  look  to 
the  nationality  of  the  parent,  and  disregard,  more  or  less,  the  place  of  birth.  Al- 
though the  statute  law  of  most  countries  has  introduced  certain  modifications  of  each 
of  these  principles,  the  difference  springing  from  the  original  sources  of  the  system 
of  law  still  remains.  To  guard  effectively  against  the  occurrence  of  cases  of  double 
nationality  would  require  the  assimilation  in  this  respect  of  all  the  various  systems  of 
law  prevailing  in  civilized  communities,  an  ideal  which,  however  desirable,  is  not 
likely  to  be  realized."  Report  of  the  United  States  Citizenship  Commission,  1907, 
p.  345.  On  the  subject  of  double  nationality,  see  further  Morse,  "  Citizenship," 
pp.  104,  157;  Moore,  "Digest,"  vol.  Ill,  pp.  518  ff. ;  Meili,  "International  Commer- 
cial and  Civil  Law,"  p.  120. 

^  Practically  all  states,  even  those  which  apply  the  jus  soli  rule  within  their  limits, 
claim  as  their  citizens  children  born  abroad  of  their  own  citizens,  that  is  to  say, 
they  recognize  the  jus  sanguinis  principle  to  a  limited  extent,  but  may  and  often  do 
make  such  citizenship  depend  upon  return  to  and  residence  within  the  country. 
In  such  cases  the  law  not  unfrequently  declares  that  the  child  must  upon  reaching 
full  age  make  a  declaration  of  election  or  alienage. 


336 


CITIZENSHIP   AND    NATIONALITY 


Avoid- 
ance of 
Conflicts 


Advan- 
tages and 
Disad- 
vantages 
of  each 
Rule 


side  of  their  own  jurisdiction.*  Furthermore,  many  states 
allow  persons  of  double  nationality  residing  within  their 
limits  the  right  to  elect  the  nationality  which  they  prefer 
on  attaining  their  majority.  Thus  France,  while  claiming 
as  citizens  all  children  born  of  aliens  within  French  terri- 
tory, allows  them  to  "decline"  French  citizenship  the  year 
following  the  attainment  of  their  majority  and  assume  the 
nationality  of  their  fathers,  by  producing  a  certificate  from 
the  government  of  the  state  to  which  their  fathers  belong, 
showing  that  they  have  elected  such  nationality,  and  also  a 
certificate  showing  that  they  have  complied  with  any  call 
that  may  have  been  made  upon  them  for  military  service.* 
The  law  is  the  same  in  Belgium.' 

Each  of  these  rules  has  its  advantages  and  its  disadvan- 
tages. Where  the  place  of  birth  is  the  determining  ele- 
ment, the  fact  of  citizenship  is  easily  proved;  but  in  other 
respects  the  rule  is  illogical  and  unsatisfactory.  By  mak- 
ing one's  status  depend  upon  the  place  of  birth,  often  a 
mere  accidental  circumstance,  it  not  infrequently  confers 
nationality  under  conditions  that  are  absurd.  Thus  a 
person  may  be  born  of  alien  parents  in  a  state  in  which  the 
parents  are  merely  visiting  or  in  which  they  are  tempo- 
rarily sojourning  with  no  intention  of  permanently  residing 
there,  yet  under  the  operation  of  this  rule,  if  strictly  applied, 
the  child  becomes  a  citizen  of  that  state.  The  doctrine 
of  the^'w5  soli  is  a  relic  of  feudalism.  It  is  true  that  it  is  a 
part  of  the  English  common  law,  but  as  only  that  part  of 
the  common  law  was  introduced  into  the  United  States 
which  was  applicable  to  the  peculiar  situation  of  our  an- 
cestors, it  may  well  be  doubted  whether  an  institution  so 


'  Lawrence,  "  Principles  of  International  Law,"  p.  192. 

'  Code  Civil  of  France,  sec.  4. 

'  Code  Civil  of  Belgium,  art.  9.  In  Denmark  children  born  of  foreigners  may 
make  a  declaration  of  alienage  in  their  nineteenth  year,  but  they  must  produce  proof 
that  they  possess  citizenship  in  a  foreign  country.  If  they  continue  to  reside  in 
Denmark,  the  declaration  of  alienage  will  have  no  validity. 


THE   AMERICAN   AND    ENGLISH   RULE  337 

bound  up  with  feudalism  was  ever  suited  to  the  conditions 
of  this  country/ 

The  jus  sanguinis  rule  is  free  from  these  objections,  but 
it  lacks  the  advantage  of  easy  proof,  since  the  proof  of 
parentage  is  sometimes  attended  with  practical  difficulty. 
Furthermore,  under  this  rule,  a  person  may,  while  residing 
in  one  state,  retain  his  foreign  nationality  and  perpetuate 
it  indefinitely  if  the  advantages  of  alienage  seem  to  outweigh 
those  of  citizenship.  On  the  whole,  however,  the  rule 
seems  to  be  the  more  logical,  natural,  and  reasonable,  and 
its  wide  adoption  in  practice  has  led  "it  to  be  considered  by 
some  authorities  as  a  part  of  the  law  of  nations,^  though 
erroneously  so.^ 

III.  THE  AMERICAN  AND  ENGLISH  RULE 

As  has  been  said,  the  doctrine  of  the  jus  soli  was  intro- 
duced into  the  United  States  as  a  part  of  the  English  com- 
mon law,  though  on  account  of  its  feudal  origin  it  is  doubt- 
ful whether  it  was  not  more  unsuited  to  the  situation  of 
our  ancestors  than  the  rule  which  determines  nationality 
according  to  descent. 

The  constitution   of   the   United   States,   as    originally  Early 
adopted,   required  citizenship  of  the  United  States  as  a  ?°the°* 
qualification  for  membership  in  both  Houses  of  Congress  United 
and  also  for  the  executive  office,  but  it  failed  to  enumerate 
the  essential  elements  of  national  citizenship,  thus  leaving 
the  whole   matter  an   open  question.     The   judicial   and 
executive  departments  as  well  as  the  commentators,  how- 
ever, took  the  view  that  citizenship  by  birth  was  to  be 
determined  on  the  basis  of  the  common  law  or  jus  soli 

'  Cf.  Webster,  "The  Law  of  Citizenship,"  pp.  vii  and  50. 

*  See  an  opinion  of  Judge  Morrow  in  the  case  of  Wong  Kim  Ark,  71  Fed.  Rep. 
382;  also  the  opinion  of  the  United  States  Supreme  Court  in  the  Slaughter-House 
cases  where  the  court  spoke  of  the  rule  of  the  jtis  sanguinis  as  the  "doctrine  of  the 
law  of  nations." 

'  Van  Dyne,  "  Law  of  Citizenship,"  p.  3. 
POL.  SCI.  —  22 


338 


CITIZENSHIP   AND    NATIONALITY 


The  Four- 
teenth 
Amend- 
ment 


principle.  This  view  was  first  laid  down  by  Chief  Justice 
Marshall  in  1804/  and  it  was  followed  by  the  courts  of 
New  York  State,  by  various  Secretaries  of  State  of  the 
United  States,  and  by  the  inferior  courts  of  the  United 
States.^  The  doctrine  of  the  jus  soli  was  finally  incorpo- 
rated into  the  constitution  of  the  United  States  by  the 
Fourteenth  Amendment,  adopted  in  1868,  which  declares 
that  "all  persons  born  or  naturalized  in  the  United  States 
and  subject  to  the  jurisdiction  thereof  are  citizens  of  the 
United  States  and  of  the  state  wherein  they  reside."  This 
provision  is  held  to  have  been  simply  a  reenactment  of  the 
common  law  rule,  declaratory  of  the  existing  practice  as 
to  who  were  citizens.'  There  was  some  uncertainty  at 
first  as  to  the  meaning  of  the  phrase  "subject  to  the 
jurisdiction  thereof,"  *  but  it  is  now  understood  to  com- 
prehend all  persons  born  in  the  United  States  except  chil- 
dren born  of  alien  enemies  in  hostile  occupation  of  the 
United  States  (since  they  would  not  be  born  under  actual 
obedience)  and  the  children  of  diplomatic  representatives 
of  foreign  states.  Children  born  in  the  United  States  of 
foreign  consuls  and  of  other  foreign  citizens  or  subjects 
residing  or  temporarily  sojourning  here  are  held  to  be 
natural-born  citizens,  since  they  are  clearly  subject  to  the 
jurisdiction  of  the  United  States.  The  specific  point  de- 
cided in  the  case  in  which  the  question  of  the  status  of  chil- 


^  In  the  case  of  the  Charming  Betsey,  2  Cranch  64. 

'  The  Supreme  Court  of  New  York  in  1844  (Lynch  v.  Clark,  i  Sandf .  Ch.,  p.  583) 
ruled  that  children  born  of  alien  parents,  even  though  temporarily  residing  in  the 
United  States,  were  citizens  of  the  United  States,  i.e.,  the  place  of  birth  was  the 
determining  factor.  See  also  the  opinion  of  Secretary  of  State  Marcy  (1854),  and 
that  of  Attorney  General  Bates  in  1862,  10  Opinions  Atty.  Gen.  392. 

'  Van  Dyne,  "Citizenship  of  the  United  States,"  p.  7. 

*  See,  e.g.,  the  erroneous  dictum  of  Justice  Miller  in  the  Slaughter-House  cases 
(16  Wall.  73)  that  the  above  phrase  was  intended  to  exclude  from  its  operation  not 
only  the  children  born  of  diplomatic  representatives  in  the  United  States,  but  also 
the  children  born  of  consuls  and  of  citizens  or  subjects  of  foreign  countries  residing  in 
the  United  States.  Cf.  Burgess,  "Political  Science  and  International  Law,"  vol. 
I,  pp.  221-223 ;  also  Moore's  American  Notes  to  Dicey's  "Conflict  of  Laws,"  p.  201. 


THE  AMERICAN  AND  ENGLISH  RULE 


339 


dren  born  here  of  domiciled  aliens  was  definitely  settled, 
was  that  a  child  born  of  Chinese  parents  in  the  United  States 
was  a  citizen,  though  Chinese  are  incapable  of  being  natu- 
ralized under  the  laws  of  the  United  States/  But  Indians 
born  within  the  limits  of  the  United  States  of  Indians  who 
still  maintain  their  tribal  relations,  although  owing  alle- 
giance to  the  United  States,  were  held  not  to  have  been 
born  in  the  United  States  or  subject  to  the  jurisdiction 
thereof  within  the  meaning  of  the  Fourteenth  Amend- 
ment any  more  than  the  children  of  foreign  diplomatic 
representatives,  and  hence  are  not  considered  as  citizens 
until  they  have  been  naturalized.^ 

In  the  United  States,  as  in  England,  however,  the  strict  Modifica 
jus  soli  or  common  law  rule  has  been  modified  so  far  as  it  «VjusSoii'' 
relates  to  the  status  of  children  born  abroad  of  persons  who  Rule  in  the 

1  1  •    •  1   •  <-r>i  1  r    United 

are  themselves  citizens  or  subjects.  1  hus  by  an  act  or  states 
Congress  of  1855,  still  in  force,  it  was  declared  that  all 
children  born  out  of  the  jurisdiction  of  the  United  States  of 
fathers  who  are  citizens  should  be  considered  citizens  of 
the  United  States.  But  in  order  to  prevent  the  right 
of  citizenship  in  such  cases  from  being  transmitted  indefi- 
nitely to  persons  who  had  never  resided  here  the  act 
provided  that  the  rights  of  citizenship  should  not  descend 
to  children  whose  fathers  had  never  maintained  a  resi- 
dence in  the  United  States.'  A  recent  act  of  Congress, 
however,  provides  that  children  born  abroad  of  American 
parents  in  order  to  receive  the  protection  of  the  United 
States  government,  shall  be  required  upon  reaching  the 

*  Wong  Kim  Ark  (1898),  169  U.S.  649.  See  also  the  opinion  of  the  Department 
of  State  that  "birth  in  the  United  States  irrespective  of  the  nationality  of  the  parents 
confers  American  citizenship.  In  view  of  the  decisions  of  our  federal  courts  there 
can  be  no  doubt  of  the  correctness  of  this  principle."  "Foreign  Relations  of  the 
United  States,"  1901,  p.  303. 

^  Elk  t'.  Wilkins,  112  U.S.  99;  McKay  v.  Campbell,  2  Sawyer,  119. 

^  U.S.  Revised  Statutes,  sec.  1903.  This  provision  has  been  interpreted  as  giving 
no  right  of  inheriting  nationality  through  women,  and  hence  an  illegitimate  child 
born  abroad  to  an  American  woman  is  not  a  citizen  of  the  United  States.  (Moore's 
"  Digest,"  vol.  Ill,  p.  285.) 


340  CITIZENSHIP   AND    NATIONALITY 

age  of  eighteen  years  to  record  at  an  American  consulate 
their  intention  of  becoming  residents  and  of    remaining 
citizens  of  the  United  States.^     It  has  been   the  uniform 
policy  of  the  United  States  to  protect  such  citizens  until 
they  have  attained  the  age  of    twenty-one  years,  and  to 
allow  them  upon  reaching  such  age  to  elect  whether  they 
will  remain  American  citizens  or  choose  the  nationality  of 
the  state  in  which  they  were  born  and  reared.     The  new 
citizenship  law  of  1907,  as  stated  above,   requires  a  dec- 
laration of  intention   at  the  age  of  eighteen  years  —  the 
period  when   liability   to   military  service    usually  begins 
Practice      in  Europe.     Without  such  a  declaration  the  United  States 
United        government  might  be   called  on  to  protect  from  military 
states         conscription  many  persons  who  have  no  intention  of  resid- 
ment  ing  in  the  United  States  or  of  performing  the  obligations 

of  citizenship,  but  who,  after  shielding  themselves  from 
the  performance  of  their  duties  to  the  government  under 
which  they  reside  by  the  ambiguity  of  their  position  accept 
the  allegiance  of  the  country  of  their  birth. ^  But  the 
United  States  will  not  protect  its  jure  sanguinis  citizens 
against  the  claims  of  the  state  in  whose  territory  they  were 
born  if  that  state  claims  them  as  its  citizens  or  subjects 
jure  soli.  Conversely,  children  of  aliens  born  in  the  United 
States  are  not  protected  against  the  state  to  which  their 
fathers  belong  if  it  claims  them  as  citizens  jure  sanguinis. 
Likewise  England,  by  a  statute  passed  in  the  seventh  year 
of  Queen  Anne's  reign,  adopted  the  jus  sanguinis  principle 
in  respect  to  children  born  abroad  of  British  subjects,  it 
being  provided  that  such  persons  should  be  deemed  to  be 
natural-born  subjects.  In  the  reign  of  George  II  the  prin- 
ciple was  further  extended  so  as  to  include  not  only  chil- 
dren born  abroad  of  British  fathers,  but  also  those 
whose  paternal  grandfathers  were  born  in  his  Majesty's 
dominions. 

'  Act  of  March  2,  1907,  sec.  6. 

2  United  States  Citizenship  Commission  Report,  p.  17. 


CITIZENSHIP   BY   DIRECT   GRANT   OR   CONFERMENT    341 

Thus,  both  the  United  States  and  England,  where  the 
doctrine  of  the  jus  soli  is  recognized  as  a  part  of  the  common 
law,  have  adopted  the  principle  of  the  jus  sanguinis  for 
determining  the  status  of  children  born  abroad  of  citizen 
fathers,  thus  combining  the  two  rules,  rather  than  follow- 
ing either  alone.  Accordingly,  children  born  abroad  of 
United  States  citizens  are  American  citizens  jure  sanguinis, 
while  children  born  in  the  United  States  of  aliens  are  Ameri- 
can citizens  jure  soli. 

IV.     CITIZENSHIP    BY   DIRECT   GRANT   OR   CONFERMENT; 
NATURALIZATION 

Citizenship  may  be  acquired  not  only  by  birth  within  a  Meanings 
place  subject  to  the  jurisdiction  of  the  state  or  through  Term* 
inheritance  from  a  citizen  father,  but  also  by  formal  grant  "Natural!. 

-^  .  zation" 

of  the  state.  This  method  is  commonly  called  naturaliza- 
tion. In  its  broadest  sense  naturalization  signifies  the  act 
of  formally  adopting  a  foreigner  into  the  political  body  of 
the  nation  and  of  clothing  him  with  the  privileges  of  a 
native.^  It  is  a  gratuitous  concession  to  an  alien,  is  granted 
only  upon  certain  prescribed  conditions,  and  may  be  with- 
held upon  grounds  of  public  policy  or  for  any  reason  which 
in  the  judgment  of  the  state  may  seem  wise  or  expedient. 
Naturalization  in  the  wider  sense  includes  the  bestowal  of 
citizenship  on  an  alien  in  any  manner  whatever,  whether 
through  legitimation,  adoption,  the  naturalization  of  the 
children  through  the  naturalization  of  the  parent,  the 
naturalization  of  a  woman  through  marriage  to  a  citizen, 
naturalization  through  the  purchase  of  real  estate,  through 
service  in  the  army  or  navy  or  the  civil  service,  through  the 
operation  of  the  law  of  domicile,  or  through  annexation 
of  foreign  territory,  etc.  In  a  more  restricted  sense  natu- 
ralization has  reference  to  the  granting  of  citizenship  by  a 
court  or  an  administrative  officer  after  the  fulfillment  by 

*  Minneapolis  v.  Raum,  12  U.S.  App.  446,  and  Opinions  of  Atty.  Gen.,  1859,  in 
the  Ernst  case. 


342  CITIZENSHIP   AND    NATIONALITY 

the  applicant  of  certain  prescribed  conditions.  This  is  the 
meaning  which  popular  usage  in  the  United  States  and 
England  attaches  to  the  term. 

In   the  United   States   the  whole  matter  of  the   grant- 
ing of  citizenship  to  aliens  rests  with  Congress.^     Before 
1790,  when  Congress  first  legislated  on  the   subject,  the 
several    states    passed    laws    prescribing  conditions  under 
which  aliens  might  be  naturalized  within  their  respective 
jurisdictions,  thus  raising  the  question  as  to  the  force  and 
validity  of  such  laws.     In  18 17  the  United  States  Supreme 
Court  held  that  the  power  of  Congress  was  exclusive,  and 
this  doctrine  has  been  followed  ever  since. ^     "The  power  of 
Congress  must  necessarily  be  exclusive,"  argued  Hamilton, 
"because  if  each  state  had  power  to  prescribe  a  distinct  rule 
there  could  not  be  a  uniform  rule  as  required  by  the  con- 
stitution." ^ 
Natural!-         The  power  to  naturalize  has  been  delegated  by  Congress 
thrunited  ^^  Certain  judicial  tribunals.     By  the  act  of  June  29,  1906, 
states         these  are:    the  United   States  circuit  and  district  courts, 
the  Supreme  Court  of  the  District  of  Columbia,  and  all 
state    and    territorial  courts  of    record    having  a   seal,  a 
clerk,   and   a  jurisdiction   in  actions   at  law  or  equity  in 
In  which  the  amount  in  controversy  is  unlimited.*      In  Bel- 

"'°^*  gium,  the  certificate  is  granted  by  the  Minister  of  Justice, 
but  only  after  an  authorization  by  the  two  chambers, 
which  consider   each   application   in   secret   session.^      In 

*  Constitution  of  the  United  States,  art.  I,  sec.  8.  For  the  status  of  the  question 
during  the  revolutionary  period,  see  the  case  of  Inglis  v.  Trustees,  3  Pet.  99;  also 
Moore's  "Digest,"  sec.  376. 

*  Chirac  v.  Chirac,  2  Wheaton  259;  Wong  Kim  Ark  (163  U.S.  228).  Between 
1776  and  1790,  Delaware,  Maryland,  South  Carolina,  and  Virginia  passed  such 
laws  and  granted  passports  to  their  citizens  to  travel  abroad  (U.S.  Citizenship 
Commission  Report  p.  8). 

'"Federalist,"  No.  32. 

*  Sec.  3.  Prior  to  1906  inferior  courts  of  limited  jurisdiction  were  empowered  to 
grant  certificates  of  naturalization,  but  the  abuses  that  resulted  led  to  the  restriction 
of  the  privilege  to  inferior  courts  having  unlimited  jurisdiction. 

»  Law  of  1 88 1,  arts.  6-8. 


CITIZENSHIP   BY  DIRECT   GRANT   OR   CONFERMENT    343 

Austria,  France,  Hungary,  and  Portugal,  the  power  to  natu- 
ralize belongs  to  the  higher  administrative  authorities.  In 
England  it  rests  with  one  of  the  principal  secretaries  of 
state,  who  has  the  right  to  grant  or  withhold  the  certificate 
after  examining  evidence  which  must  be  furnished  by  the 
applicant  regarding  his  residence  and  intention  to  reside 
therein,  and  no  appeal  may  be  taken  from  his  decision/ 
In  Switzerland,  application  is  made  to  the  federal  council 
(the  executive),  which  after  a  hearing  authorizes  the  coun- 
cils of  the  canton  and  the  commune  in  which  the  applicant 
has  taken  up  his  residence  to  grant  the  certificate.^  In 
Germany,  naturalization  is  granted  by  the  administrative 
authorities  of  the  individual  states,  though  imperial  law 
prescribes  the  conditions. 

Concerning  the  qualifications  for  admission  to  citizen-  Conditions 
ship,  the  practice  of  states  differs  widely.  In  the  United  fn^he'*'*^'* 
States  prior  to  1868  only  free  white  persons  were  capable  of  United 
being  naturalized.  By  the  act  of  1870,  still  in  force,  the 
privileges  of  naturalization  were  extended  to  "aliens  of 
African  nativity  and  to  persons  of  African  descent."  Under 
the  present  law,  therefore,  only  "white  persons"  and  "per- 
sons of  African  descent"  are  embraced  within  the  operation 
of  the  naturalization  law.^  Indians  are  excluded  from  the 
benefits  of  naturalization  under  the  general  laws,  though 
they  may  be,  and  often  have  been,  naturalized  by  special 
acts  or  by  treaty.  Chinese  are  excluded  by  act  of  Congress 
from  being  naturalized,  though  under  the  interpretation  of 
the  Fourteenth  Amendment  they  may  acquire  American 
citizenship  by  birth  in  the  United  States.  So  Japanese, 
Burmese,  and  Hawaiians  are  excluded,  since  they  are  neither 

white  persons ' '  nor  ' '  persons  of  African  descent. ' '  *    So  are 

*  Prior  to  1847  the  only  method  of  naturalization  in  Great  Britain  was  by  means  of 
a  special  act  of  Parliament  or  by  letters  of  denization  from  the  crown.  In  Great 
Britain,  as  in  the  United  States,  special  acts  are  still  sometimes  passed,  though  with 
increasing  rarity. 

*  Law  of  1903,  arts.  2-3.  '  U.S.  Revised  Statutes,  sec.  2169. 

*  Van  Dyne,  "Citizenship,"  p.  57. 


344  CITIZENSHIP  AND   NATIONALITY  , 

alien  enemies,  polygamists,  and  disbelievers  in,  or  opponents 
of,  organized  government,  or  advocates  of  the  assassina- 
tion of  public  officers  or  members  of  organizations  or  bodies 
teaching  such  doctrines.*  In  the  United  States  the  appli- 
cant for  naturalization  must  have  "behaved  as  a  person  of 
good  moral  character,"  and  must  be  "attached  to  the  prin- 
ciples of  the  constitution  and  well  disposed  to  the  good 
order  and  happiness  of  the  same."  ^  By  the  recent  act  of 
1906  he  must  also  be  able  to  read  and  speak  the  English 
language.  Mexico  excludes  convicted  pirates,  slavehold- 
ers, incendiaries,  counterfeiters  of  money,  murderers,  kid- 
nappers, and  robbers,  and  requires  the  applicant  to  have  a 
business,  trade,  or  profession  or  an  income  capable  of  support- 
ing him.  Peru  has  a  similar  requirement.'  Hungary  re- 
quires blameless  character  and  evidence  of  visible  means 
In  of  support  for  the  applicant  and  his  family.*     Norway  re- 

"'°^"  quires  security  that  the  applicant  and  his  family  shall  not 
become  a  public  charge.  Portugal  and  Sweden  require 
evidence  of  ability  to  earn  a  livelihood,  and  Sweden  in 
addition  insists  on  the  possession  of  good  moral  character. 
The  Netherlands  require  the  applicant  to  furnish  proof 
that  the  laws  of  his  country  place  no  obstacle  in  the  way 
of  his  naturalization  by  another  state.^  Germany  requires 
the  applicant  to  be  capable  of  managing  his  own  affairs,  to 
have  led  an  irreproachable  life,  and  to  possess  ability  to  sup- 
port himself  and  those  dependent  on  him.  Before  a  certifi- 
cate of  naturalization  is  granted,  the  authorities  granting  it 
must  receive  a  report  from  the  local  authorities  to  the  effect 
that  the  applicant  has  a  residence  of  his  own  or  some  place 
of  shelter.® 

Nearly  all  states  require  a  period  of  residence  as  a  condi- 

^  Act  of  June  29,  1906,  sees.  4  and  7. 

'  For  the  judicial  interpretation  of  these  conditions  see  the  U.S.   Citizenship 
Commission  Report,  pp.  115-118;  also  Moore's  "Digest,"  sec.  383. 

*  Law  of  1886,  sees.  11-16  and  21-22.  *  Law  of  1879,  sec.  8. 

•  Law  of  1892,  art.  3.  •  Law  of  1870,  sec.  8. 


CITIZENSHIP   BY   DIRECT   GRANT   OR   CONFERMENT    345 

tion  to  naturalization.  In  Portugal,  Bolivia,  and  Ecuador  Residence 
this  period  is  one  year,  though  in  the  case  of  aliens  descended  ^g^^g"" 
from  Portuguese  and  in  the  case  of  foreigners  who  marry 
Portuguese  women  no  specific  period  of  residence  is  required. 
In  Argentina,  San  Domingo,  Switzerland,  and  Mexico  the 
period  required  is  two  years,  an  exception  being  made  by 
Mexico  of  aliens  serving  in  the  merchant  marine.  Only 
one  year's  residence  is  required  in  such  cases.  In  Sweden, 
the  period  of  residence  required  is  three  years,  though  a  less 
time  may  be  demanded  if  the  applicant  has  distinguished 
himself  by  extraordinary  skill  in  science  or  art,  agriculture, 
mining,  or  other  occupation,  or  if  his  naturalization  would 
in  other  respects  be  of  benefit  to  the  kingdom.^  Italy 
requires  a  residence  of  six  years  or  service  under  the  gov- 
ernment for  four  years,  but  the  residence  requirement  may 
be  reduced  to  three  years  if  the  applicant  is  the  husband  of 
an  Italian  woman  or  has  rendered  important  service  to  the 
state.^  In  the  United  States,  Hungary,  Great  Britain, 
Japan,  and  the  Netherlands,  this  period  is  five  years;  though 
in  Great  Britain  the  residence  requirement  is  waived  if 
the  applicant  has  been  in  the  service  of  the  crown  for  that 
length  of  time,  and  in  Japan  it  is  not  required  if  the  wife 
of  the  applicant  is  a  Japanese  woman.  In  Argentina  no 
specified  period  of  residence  is  required  where  the  alien  has 
held  public  office  in  the  state,  served  in  the  army  or  navy, 
introduced  a  new  and  useful  invention,  constructed  a 
railroad,  or  married  an  Argentine  woman. ^  In  the  United 
States  a  period  of  one  year's  residence  suffices  for  aliens 
who  have  served  in  the  army  and  been  honorably  dis- 
charged. In  England  the  applicant  must  also  declare  his 
intention  to  reside  in  the  kingdom  and  serve  under  the 
crown.  In  Austria  and  France  a  residence  of  ten  years  is 
required;  and  in  the  latter  country  the  applicant  must 
establish  a  domicile  within  three  years  after  receiving  the 

'  Regulations  of  1S58,  sec.  2.  '  Law  of  1906,  art.  i. 

^  Law  of  June  26,  1889. 


346 


CITIZENSHIP  AND   NATIONALITY 


Effect  of 
Naturali- 
zation 


English 
Distinc- 
tion be- 
tween 
Naturali- 
zation and 
Deniza- 
tion 


certificate,  but  this  may  be  reduced  to  one  year  if  he  has 
served  the  state  or  displayed  exceptional  talents  or  has 
introduced  into  France  any  useful  industry  or  invention. 

The  effect  of  naturalization  according  to  the  law  of  most 
states  is  to  invest  the  alien  with  all  the  rights  of  a  natural- 
born  citizen  or  subject,  though  a  few  exceptions  are  sometimes 
made.  Thus  the  British  naturalization  act  declares  that  a 
naturalized  subject  shall  be  entitled  to  all  political  and  other 
rights  and  privileges  and  be  subject  to  all  the  obligations 
to  which  a  natural-born  Englishman  is  subject,  except  that 
when  he  is  within  the  limits  of  the  state  of  which  he  was 
formerly  a  subject  he  shall  not  be  deemed  a  British  subject 
unless  he  has  ceased  to  be  a  subject  of  that  state  in  pursu- 
ance of  its  laws  or  of  a  treaty  stipulation.  Thus  a  Russian 
or  a  Turkish  subject  naturalized  in  Great  Britain  without 
the  consent  of  his  government  will  be  treated  as  a  British 
subject  everywhere  except  in  Russia  or  Turkey.  In 
those  countries  he  will  be  treated  as  an  alien  to  Great  Brit- 
ain and  denied  the  protection  of  the  British  government, 
because  those  states  do  not  recognize  the  right  of  their 
subjects  to  renounce  their  allegiance  for  a  new  one.  The 
British  Naturalization  Commission  of  1901  recommended 
that  all  differences  between  the  status  of  a  natural-born  and 
a  naturalized  British  subject  should  as  far  as  possible  be 
abolished.  It  is  especially  desirable,  said  the  commission, 
that  a  naturalized  alien  should,  like  a  natural-born  British 
subject,  remain  a  British  subject  everywhere  and  for  all 
purposes  unless,  and  until,  he  divests  himself  of,  or  loses 
his  nationality  in  one  of  the  ways  provided  by  law. 

British  law  and  practice  make  a  distinction  between 
naturalization  and  denization,  the  former  being  granted  in 
pursuance  of  an  act  of  Parliament,  the  latter  by  a  grant  of 
the  crown  by  letters  patent.  The  right  of  denization  is  an 
ancient  prerogative  of  the  crown,  and  though  preserved 
by  the  naturalization  act  of  1870,  Is  very  rarely  resorted  to. 
While  naturalization  places  an  alien  in  the  same  position 


CITIZENSHIP   BY   DIRECT   GRANT   OR   CONFERMENT    347 

as  if  he  were  a  natural-born  subject,  theoretically  a  denizen 
occupies  a  rather  intermediate  position  between  an  alien 
and  a  natural-born  subject  and  partakes  of  both  charac- 
teristics/    But  there  is  not  much  practical  difference  in 
effect.     A  denizen  cannot,  however,  be  a  member  of  the 
Privy  Council,  or  of  either  House  of  Parliament,  or  hold 
any  office  of  trust,  civil  or  military,  or  take  a  grant  of  lands 
from   the    crown.^      Some    states,    notably    Belgium    and 
France,  make  a  distinction  between   "grand"  naturaliza-  Conti- 
tion   and    "ordinary"   naturalization.     The   former  alone  °i^°^n*^" 
has  the  effect  of  placing  an  alien  on  a  footing  of  political  between^ 
equality    with    a    person    of    native    birth.      To    acquire  and"Ordi- 
" grand"  naturalization  in  Belgium,  the  applicant  must  be  ^^^'^ 
twenty  years  of  age,  must  be  married,  or,   if  a  widower,  zation     * 
must  have  one  or  more   children,  or   must  have    resided 
in   Belgium  at  least  ten  years,  which  may  be  reduced  to 
five   years   in   case   the   applicant   has  married  a  Belgian 
woman.     Grand  naturalization  cannot  be  granted  to  un- 
married foreigners  or  childless  widowers  until  they  have 
reached  the  age  of  forty  years  and  resided  in  Belgium  fifteen 
years.     "Ordinary"     naturalization    may    be    granted    to 
aliens  who  have  attained  the  age  of  twenty-one  years  and 
resided  in  Belgium  five  years.^ 

In  the  United  States  the  only  distinction  between  a  natu-  Naturai- 
ral-born  and  a  naturalized  citizen  is  that  contained  in  the  Na^turai- 
national  constitution,  which  restricts  the   offices  of  Presi-  i^ed  evi- 
dent and  Vice  President  of  the  United  States  to  natural-  united 
born  citizens.     In  all  other  respects  the  two  classes  of  citi-  ^***®^ 
zens  are  on  a  footing  of  absolute  civil  and  political  equality, 
and  they  are  protected  equally  and    alike  everywhere,  in 
the  country  of  origin  as  well  as  in  other  states.     Until  the 
middle  of  the  nineteenth  century,  however,    the  rule  was 
frequently  laid  down  by  American  publicists  and  followed 

*  Cockburn,  on  "Nationality,"  p.  28. 

*  Westiake,  "Private  International  Law,"  p.  327. 
'  Naturalization  Law  of  1881. 


348  CITIZENSHIP   AND    NATIONALITY 

in  practice  by  secretaries  of  state  (notably  by  Webster 
and  Everett)  that  a  naturalized  citizen  was  not  entitled 
to  the  protection  of  the  United  States  government  in  the 
country  of  his  origin.  If,  therefore,  an  alien  after  becom- 
ing naturalized  in  the  United  States  returned  to  his  native 
country,  the  government  of  his  adopted  country  would  not 
intervene  in  his  behalf  against  the  claim  of  his  native  state 
to  his  services.  James  Buchanan,  however,  Secretary 
of  State,  in  1848,  in  an  instruction  to  George  Bancroft, 
then  Minister  to  England,  declared  that  the  United  States 
government  would  recognize  no  distinction  between  natu- 
ral-born and  naturalized  citizens  in  respect  to  their  right 
of  protection.  Again  in  1859,  after  he  had  become  Rresident 
of  the  United  States,  he  vigorously  cotnbated  the  doctrine 
that  a  naturalized  citizen  was  not  entitled  to  protection 
against  the  claims  of  his  native  state,  and  asserted  that  "our 
government  is  bound  to  protect  the  rights  of  naturalized 
citizens  everywhere  to  the  same  extent  as  though  they  had 
drawn  their  first  breath  in  this  country."  "We  recognize 
no  distinction,"  he  said,  "between  our  native  and  natu- 
ralized citizens."  ^  This  view  has  since  been  uniformly  acted 
on  by  succeeding  presidents,  and  indeed  would  seem  to  be 
obligatory  on  the  executive,  since  the  statutes  expressly 
declare  that  all  naturalized  citizens  of  the  United  States 
while  in  foreign  countries  are  entitled  to  and  shall  receive 
from  this  government  the  same  protection  of  person  and 
property  which  is  accorded  to  natural-born  citizens.^  The 
European  doctrine  that  a  naturalized  alien  shall  not  be 
considered  a  citizen  or  subject  in  the  country  of  his  origin 
when  the  latter  refuses  to  admit  the  right  of  expatriation 
is  virtually  the  recognition  of  the  existence  of  a  dual  alle- 
giance. It  rests  on  the  theory  that  naturalization  does 
not  necessarily  substitute  a  new  nationality  in  the  place  of 
the  old,  but  merely  adds  to  it  a  new  allegiance  so  that  the 

*  Quoted  in  Moore,  "American  Diplomacy,"  p.  182. 
'  Revised  Statutes,  sec.  2000. 


OTHER   MODES   OF   ACQUIRING   CITIZENSHIP         349 

person  naturalized  becomes  subject  to  a  double  allegiance, 
his  status  in  any  case  depending  on  the  place  of  his 
domicile.^ 

V.     OTHER   MODES   OF   ACQUIRING   CITIZENSHIP 

In  addition  to  naturalization  proper,  citizenship  may  be  Through 
acquired  through  other  modes,  such  as  marriage,  legitima-  of^ReaT* 
tion,  adoption,  the  purchase  of  real  estate,  long  residence  Estate  or 
in  the  country,  entrance  into  the  public  service  of  a  state,   ment  to 
and  the  political  incorporation  of  foreign  territory.     Citi-  Republic 
zenship  is  acquired  by  legitimation  where  an  illegitimate 
child  of  a   citizen   father  and  an  alien   mother  is   legiti- 
mized.    In  Mexico  and   Peru  purchase  of  real  estate  by 
an   alien  operates  ipso  facto  to  confer  citizenship  on   the 
purchaser.     In   Peru,  all  instruments  for   the  transfer  of 
land   to  aliens  must  contain  an  express    renunciation  of 
foreign   citizenship   by   the   purchaser.     By    Mexican   law 
foreign  purchasers  of  real  estate  in  the  republic  are  treated 
as  citizens  unless  at  the  times  of  purchase  they  make  an 
express   declaration  of   intention    to   retain   their  original 
nationality.      According  to  Brazilian  law  ten  years'  resi- 
dence in  the  republic  confers  citizenship  on  an  alien  unless 
within  a  certain  period  he  makes  a  declaration  of  alienage. 
Appointment  of  aliens  to  positions  in  the  public  service  of 
some  states,  of  which  Austria  and  Norway  are  examples, 
has  the  effect  of  naturalizing  the  persons  so  appointed.^ 

Citizenship  is  conferred  on  large  bodies  of  inhabitants  in  Through 
their  collective  capacity  by  the  annexation  of  new  territory,   ticm^^/*'^^' 
through  purchase,  gift,  conquest,  or  other  mode.    By  the  pub-  Foreign 
lie  law  of  most  states  the  inhabitants  of  territories  acquired 

'Compare  Moore,  "American  Diplomacy,"  p.  192.  "The  doctrine  of  dual 
allegiance,"  says  Professor  Moore,  "is,  in  a  word,  the  precise  test,  the  acceptance  of 
which  distinguishes  those  who  reject  the  doctrine  of  voluntary  expatriation  from 
those  who  support  it." 

^  The  new  citizenship  law  of  the  United  States  recognizes  this  as  one  of  the  modes 
by  which  American  citizenship  may  be  lost,  though  there  is  no  express  provision  to 
the  effect  that  an  alien  may  acquire  American  citizenship  in  this  way. 


350  CITIZENSHIP   AND   NATIONALITY 

by  cession  or  conquest  take  the  nationality  of  the  state  under 
whose  dominion  they  pass,  subject  usually  to  the  provision 
that  they  may  elect  to  retain  their  former  nationality  by 
removal  or  otherwise.  While,  however,  the  inhabitants 
of  the  territory  transferred  acquire  a  new  allegiance  and  a 
new  citizenship  and  incur  new  political  obligations,  their 
relations  with  one  another  are  not  changed.  That  is  to 
say,  the  public  law  to  which  they  are  subject  alone  is 
changed,  the  private  law  being  left  as  it  was  until  super- 
seded or  modified  by  the  new  sovereign.^  It  was  by  annexa- 
tion that  the  inhabitants  of  Florida,  Louisiana,  Texas, 
California,  Alaska,  and  Hawaii  became  citizens  of  the 
United  States.  In  the  case  of  Louisiana,  Florida,  and 
Alaska  the  treaties  of  cession  provided  that  the  inhabit- 
ants of  the  ceded  territory  should  be  admitted  as  soon  as 
possible,  according  to  the  principles  of  the  federal  consti- 
tution, to  the  enjoyment  of  all  the  rights,  advantages,  and 
immunities  of  citizens  of  the  United  States,  though  in  the 
case  of  Alaska  the  uncivilized  native  tribes  were  excluded. 
As  regards  the  inhabitants  of  Porto  Rico  and  the  Philip- 
pine Islands,  the  treaty  of  cession  provided  that  their 
Citizen-  civil  status  should  be  determined  by  Congress.  The 
Unfted*^*  treaty,  therefore,  did  not  itself  confer  upon  them  the  status 
States^  of  citizenship,  though  as  regards  the  inhabitants  of  Porto 
Rico  the  United  States  Supreme  Court  has  held  that  they 
are  not  aliens  in  the  sense  in  which  the  term  is  used  in  the 
immigration  laws.^  By  acts  of  Congress  for  the  govern- 
ment of  Porto  Rico  and  the  Philippines  the  inhabitants 
have  been  declared  to  be  citizens  of  their  respective  islands, 
but  not  citizens  of  the  United  States.     This  is  the  only 

*  American  Insurance  Co.  v.  Canter,  i  Pet.  511.  It  is  very  unusual,  says  the 
U.S.  Supreme  Court,  even  in  case  of  conquest,  for  the  conqueror  to  do  more  than  to 
displace  the  sovereign  and  assume  dominion  over  the  country.  The  people  change 
their  allegiance,  their  relation  to  their  ancient  sovereign  is  dissolved ;  but  their  rela- 
tions to  each  other  and  their  rights  of  property  remain  undisturbed.  See  also  U.S. 
V.  Buchanan,  7  Pet.  511. 

*  Gonzales  t'.  Williams  (1904),  192  U.S.  i. 


Depend- 
encies 


OTHER   MODES   OF   ACQUIRING   CITIZENSHIP         351 

instance  of  the  acquisition  of  foreign  territory  by  the 
United  States  in  which  the  inhabitants  of  the  ceded  territory 
were  not  promised  or  granted  the  rights  of  citizenship. 
Nevertheless,  they  are  entitled  to  the  fullest  protection  of 
the  government  of  the  United  States,  and  passports  are 
issued  to  them  for  their  identification  in  foreign  countries. 
Not  infrequently,  as  has  been  intimated,  the  right  of 
the  inhabitants  of  ceded  territories  to  retain  their  orig- 
inal nationality  under  certain  conditions  is  expressly 
recognized  in  the  treaty  of  cession.  Thus  the  treaty  of 
peace  between  the  United  States  and  Mexico  of  1848 
contained  a  stipulation  permitting  Mexican  citizens  resid- 
ing in  the  territory  ceded  to  the  United  States  to  retain 
their  Mexican  nationality  provided  they  should  make  a 
formal  election  thereof  within  a  year  from  the  date  of 
the  exchange  of  ratifications.  In  the  event  of  failure  to 
declare  their  intention  within  the  period  mentioned,  they 
were  to  be  considered  as  having  elected  to  become  citizens 
of  the  United  States.  Similarly,  the  treaty  of  peace  be- 
tween France  and  Germany  in  1871  allowed  native-born 
Frenchmen  of  Alsace-Lorraine  to  retain  their  French  na- 
tionality by  making  a  declaration  of  intention  within  a 
certain  period  and  by  removing  their  domiciles  to  France. 
A  more  recent  instance  of  the  kind  is  found  in  the  treaty 
of  Dec.  10, 1898,  between  the  United  States  and  Spain,  which 
permitted  Spanish  subjects  residing  in  the  territory  ceded 
to  the  United  States  to  preserve  their  Spanish  allegiance 
by  making  a  declaration  within  a  year  from  the  exchange  of 
ratifications,  in  default  of  which  they  were  to  be  considered 
as  having  abandoned  their  old  allegiance.  The  benefits 
of  the  provision,  however,  do  not  apply  to  the  Filipino 
population,  but  only  to  the  natives  of  the  Spanish  king- 
dom, including  the  Balearic  and  Canary  Islands.^     Other 

*  On  the  subject  of  collective  naturalization  by  treaty,  see  Moore,  "Digest,"  sec. 
379;  Morse,  "Citizenship,"  p.  129;  Van  Dyne,  "Citizenship,"  part  II,  ch.  4;  U.S. 
Citizenship  Report,  pp.  155-158;    and  Boyd  v.  Thayer,  143  U.S.  135. 


352  CITIZENSHIP   AND    NATIONALITY 

instances  of  collective  naturalization  are  afforded  by  the 
various  treaties  and  acts  of  Congress  by  which  citizenship 
has  been  conferred  on  Indian  tribes/ 

VI.     CITIZENSHIP    IN   A   FEDERAL   STATE 

Provisions  The  inhabitants  of  states  in  which  the  federal  system  of 
Four-  government  prevails  are  usually  clothed  with  a  dual  citizen- 
teenth        gj^jp  ^j^jj  allegiance;    one,  general  or  national,   the  other 

Amend-  ^  ,         .  . 

ment  local.      The  constitution  of  the  United  States  as  originally 

adopted  (Art.  Ill,  sec.  2)  speaks  both  of  citizens  of  the 
United  States  and  of  citizens  of  the  several  states,  although 
it, does  not  define  either  national  or  state  citizenship  or  give 
any  indication  of  what  was  then  considered  their  constitu- 
ent elements.  The  Fourteenth  Amendment,  adopted  in 
1868,  cleared  up  the  uncertainty  by  declaring  that  all 
persons  born  or  naturalized  in  the  United  States,  and  sub- 
ject to  its  jurisdiction,  were  citizens  of  the  United  States, 
and  by  further  declaring  that  all  such  persons  should  be 
considered  as  citizens  of  the  several  states  in  which  they 
were  resident.  As  regards  any  persons,  however,  upon 
whom  the  citizenship  of  the  United  States  has  not  been 
conferred,  the  states  are  free  to  withhold  or  grant  their  own 
citizenship  under  such  conditions  as  they  may  see  fit  to 
prescribe.  The  Fourteenth  Amendment  merely  incor- 
porated into  the  constitution  what  Chief  Justice  Marshall 
had  long  before  held  to  be  the  unwritten  law  and  practice 
in  regard  to  citizenship  of  the  United  States  and  of  the 
states.  In  a  noted  case  decided  by  him  in  1832  he  declared 
that  "a  citizen  of  the  United  States  residing  in  any  state 
of  the  union  is  a  citizen  of  that  state."  ^ 

Many  of  the  state  constitutions  define  "state"  citizenship 
in  similar  terms,  rather  superfluously,  it  would  seem,  in  view 

•  For  a  list  of  such  treaties  and  acts  of  Congress,  see  the  case  of  Elk  v.  Wilkins, 
112  U.S.  94.  See  also  a  full  collection  in  "Indian  Affairs,  Laws  and  Treaties," 
2  vols.,  1903. 

'  Gassies  v.  Ballou,  6  Pet.  6i. 


CITIZENSHIP   IN   A   FEDERAL   STATE  353 

of  the  federal  provision.*      But  the  possession  of  United  The  states 
States  citizenship  alone  does  not  necessarily  make  one  a  J^y^thej^ 
citizen  of  a  particular  state.     An  important   element  is  own  citi- 
necessary  to  convert  the  former  into  the  latter,   namely,  Aliens 
residence  within  the  state.      As  has  been  said,  there  is  no 
constitutional  reason  why  the  states  may  not  confer  their 
own  citizenship  on  other  persons  than  United  States  citi- 
zens resident  within  their  limits,  and  as  a  matter  of   fact 
a  number  of  them  have  done  so.     Some  of  them  have  not 
only  placed  resident  aliens  on  a  footing  of  absolute  civil 
equality  with  citizens  of  the  United  States  residing  within 
their   jurisdictions,  but  have   even   granted   full   political 
privileges  to  such  as  have  declared  their  intention  of  becom- 
ing citizens  of  the  United  States.^     Likewise  a  state  may 
provide  for  the  forfeiture  or  renunciation  of  its  citizenship 
by  judicial  condemnation  or  long  residence  abroad,  without 
in  any  way  affecting  the  national  citizenship.^     As  a  conse- 
quence, federal  and  state  citizenship  are  not  identical  and 

'  In  Virginia  it  is  declared  that  all  persons  born  in  the  state,  all  persons  born  in  any 
other  state  of  the  Union,  who  may  be  or  become  residents  of  the  state;  all  aliens 
naturalized  under  the  laws  of  the  United  States  who  are  or  may  become  residents  of 
the  state;  all  persons  who  have  obtained  a  right  to  citizenship  under  former  laws; 
and  all  children,  wherever  born,  whose  father,  or  if  he  be  dead,  whose  mother, 
shall  be  a  citizen  of  the  state  at  the  time  of  the  birth  of  such  children,  shall  be  deemed 
citizens  of  the  state.     Code  (1904),  by  Pollard,  sec.  39. 

^  Some  courts,  however,  have  der'ed  the  doctrine  that  there  can  be  a  citizen  of  a 
state  who  is  not  also  a  citizen  of  the  United  States,  and  hence  that  state  citizenship 
can  only  be  acquired  through  the  acquisition  of  federal  citizenship  (Lanz  v.  Randall 
(1876),  4  Dill  428).  In  this  case  a  United  States  Circuit  Court  of  Appeals  expressed 
the  opinion  that  no  state  could  make  an  alien  a  citizen  of  the  state  in  any  other  mode 
than  that  provided  by  the  naturalization  laws  of  Congress.  But  generally  the  courts 
have  held  the  contrary  and  with  more  reason.  See,  e.g..  In  re  Wehiltz  (1863),  6  Wis. 
443.  As  the  right  of  suffrage  within  certain  limits  is  determined  by  the  several  states, 
it  follows  that  they  may  confer  the  right  to  vote  for  President  and  Vice  President  and 
for  Representatives  in  Congress  on  those  upon  whom  the  United  States  has  not  con- 
ferred the  rights  of  national  citizenship.  It  is  therefore  something  of  an  anomaly  that 
the  right  which  is  popularly  deemed  the  test  of  citizenship  (the  right  to  vote)  may  be 
exercised  by  persons  who  are  not  citizens.  The  courts  of  some  of  the  states  have, 
indeed,  held  that  one  may  be  an  elector  without  even  being  a  citizen  of  the  state  in 
which  he  votes. 

'  Talbot  V.  Jansen  (1795),  3  Dall.  183 ;  Prentice  v.  Brannan,  2  Blatch.  162. 
POL.  SCI.  —  23 


354 


CITIZENSHIP   AND    NATIONALITY 


Federal 
and  State 
Citizen- 
ship not 
Coinci- 
dent 


National 
Citizen- 
ship is 
Para- 
mount 


coexistent,  since  there  may  obviously  be  a  class  of  state 
citizens  upon  whom  the  United  States  government  has  not 
conferred  the  rights  and  privileges  of  national  citizenship. 
It  is  hardly  necessary  to  add  that  there  is  also  a  class  of 
United  States  citizens  who  are  not  endowed  with  the  citi- 
zenship of  any  state.  Such,  for  example,  are  those  resident 
in  the  territories,  dependencies,  and  federal  districts  and 
also  possibly  some  American  citizens  residing  abroad. 
From  this  it  follows  that  while  state  citizenship  is  in  most 
cases  obtained  through  the  acquisition  of  federal  citizen- 
ship, —  that  is,  it  is  generally  a  consequence  of  the  latter, 
—  it  is  not  necessarily  so. 

From  the  first,  the  courts  of  the  United  States  have  recog- 
nized the  existence  of  two  citizenships,  perfectly  distinct, 
and,  from  some  viewpoints,  wholly  independent  of  each 
other.  "It  is  quite  clear,"  said  the  United  States  Supreme 
Court  in  the  Slaughter-House  cases,  "that  there  is  a  citizen- 
ship of  the  United  States  and  a  citizenship  of  a  state,  which 
are  distinct  from  each  other  and  which  depend  upon  differ- 
ent characteristics  or  circumstances  in  the  individual."  ^ 
The  question  as  to  which  of  these  allegiances  is  paramount 
was  long  a  source  of  constitutional  controversy  in  the  United 
States.  For  a  long  time  the  states  rights  school  of  political 
thinkers  contended  that  citizenship  of  the  United  States 
was  but  the  consequence  of  citizenship  in  some  state,  and 
the  Supreme  Court  in  the  Dred  Scott  case  inclined  to  the 
same  view.^  According  to  this  view  state  citizenship  was 
the  source  of  federal  citizenship;  the  former  was  primary, 
the  latter  secondary,  and  in  case  of  conflict  the  allegiance  of 
the  citizen  to  his  state  was  considered  paramount.  But 
the  question  was  finally  settled  by  the  Civil  War  and   the 


'  16  Wall.  36,  73 ;  cf.  also  Boyd  v.  Thayer,  143  U.S.  135.     The  dual  allegiance  of 

the  citizen  under  the  American  federal  system  was  recognized  and  its  nature  well 

stated  by  the  U.S.  Supreme  Court  in  the  case  of  Cruikshank  (1875),  91  U.S.  542,  550. 

'  Burgess,  "Political  Science  and  Constitutional  Law,"  vol.  I,  p.  219;  John  C. 

Calhoun,  Works,  vol.  II,  p.  242  ;  Scott  v.  Sanford,  19  How.  p.  393. 


CITIZENSHIP   IN   A   FEDERAL   STATE  355 

adoption  of  the  Fourteenth  Amendment.  According  to 
this  amendment  the  old  view  was  reversed  and  citizenship 
of  the  United  States  was  made  primary  and  original,  and 
that  of  the  state  secondary  and  derivative.  The  former 
was  made  the  chief  source,  and  the  latter  the  consequence. 

In  the  United  States  the  citizenship  of  a  particular  state 
may  be  relinquished  by  a  mere  change  of  residence  with- 
out any  further  formality,  and  the  citizenship  of  another 
state  may  be  acquired  by  establishing  a  domicile  therein, 
also  without  any  legal  formality.  The  statutes  of  several 
states  make  express  provision  to  this  effect.* 

The  constitution  of  the  United  States  declares  that  the  interstate 
citizens  of  each  state  shall  enjoy  all  the  privileges  and  im-  citfzen° 
munities  of  citizens  of  the  several  states,  but  it  does  not  ^'"p 
undertake  to  define  those  privileges  and  immunities.  The 
Supreme  Court  of  the  United  States  has  declined  to  specify 
what  they  are,  preferring  to  decide  each  case  as  it  arises, 
in  the  light  of  the  particular  circumstances.^  Justice 
Washington,  sitting  in  the  United  States  Circuit  Court, 
said,  "We  feel  no  hesitation  In  confining  these  expressions 
to  those  privileges  and  Immunities  which  are  in  their  nature 
fundamental,  which  belong  of  right  to  the  citizens  of  all 
free  governments,  and  which  have  at  all  times  been  en- 
joyed by  the  citizens  of  the  several  states  which  compose 
this  Union  from  the  time  of  their  becoming  free,  independ- 
ent, and  sovereign.  What  those  fundamental  principles 
are  it  would  perhaps  be  more  tedious  than  difficult  to 
determine."  ^ 

'  The  statutes  of  several  states  also  make  express  provision  for  a  formal  renuncia- 
tion of  citizenship.  Thus  Virginia,  Kentucky,  and  Georgia  provide  for  formal  relin- 
quishment of  citizenship  by  declaration  made  in  court,  but  in  each  case  removal 
from  the  state  must  follow  in  order  to  make  the  renunciation  valid. 

*  McCready  v.  Virginia,  92  U.S.  391.  In  this  case  the  court  held  that  the  right 
of  a  state's  own  citizens  to  the  enjoyment  of  its  oyster  fisheries  was  a  privilege  of 
state  citizenship  and  could  not  be  claimed  by  the  citizens  of  other  states  as  a  right 
of  general  citizenship. 

'  Corfield  v.  Coryell,  4  Wash.  U.S.C.C.  Rep.  380. 


356 


CITIZENSHIP   AND   NATIONALITY 


Privileges 
and  Im- 
munities 
of  Federal 
Citizen- 
ship 


Citizen- 
ship in  the 
German 
Empire 


The  constitution  of  the  United  States  (Fourteenth 
Amendment)  speaks  also  of  the  privileges  and  immunities 
of  citizens  of  the  United  States  and  forbids  the  states 
from  making  or  enforcing  any  laws  which  shall  abridge 
those  privileges  and  immunities,  but,  as  is  the  case  with 
state  citizens,  it  does  not  undertake  to  specify  them  or 
indicate  their  nature.  The  United  States  Supreme  Court, 
in  the  Slaughter-House  cases,  in  interpreting  this  provi- 
sion of  the  Fourteenth  Amendment,  held  that  it  did  not 
confer  any  new  privileges  or  immunities  on  United  States 
citizens,  nor  attempt  to  enumerate  or  define  those  already 
existing,  but  merely  assumed  that  there  were  such  privi- 
leges and  immunities  which  belong  of  right  to  citizens  as 
such  and  which  shall  not  be  abridged  by  state  legislation. 
The  court,  however,  took  occasion  to  enumerate  what  it 
considered  to  be  some  of  the  most  important  rights  of 
federal  citizenship,  among  them  being  those  mentioned  in 
the  Civil  Rights  Act  of  1866;  namely,  the  right  to  make 
and  enforce  contracts ;  to  sue  in  the  courts ;  to  be  parties  and 
give  evidence;  to  inherit,  purchase,  lease,  hold,  and  con- 
vey real  and  personal  property;  and  to  have  full  and 
equal  benefit  of  all  laws  and  proceedings  for  the  security 
of  person  and  property. 

In  other  federal  states  the  relation  between  national  and 
local  citizenship  is  somewhat  different  from  that  in  the 
United  States.  The  constitution  of  the  German  Empire 
(art.  3)  declares  that  there  shall  exist  a  common  citizen- 
ship (Indigenai)  for  all  Germany.  It  also  recognizes  the  ex- 
istence of  a  particular  citizenship  in  each  state  and  declares 
that  the  citizens  or  subjects  (Staatsbiirger,  Staatsange- 
horige)  of  each  shall  be  treated  in  every  other  state  of  the 
empire  as  natives  and  shall  be  admitted  to  all  civil  rights 
enjoyed  by  natives  and  upon  the  same  conditions.  Con- 
trary to  the  rule  prevailing  in  the  United  States,  state 
citizenship  in  Germany  is  original  and  primary,  while 
imperial  citizenship  is  derivative  and  secondary;    that  is, 


CITIZENSHIP  IN   A  FEDERAL   STATE  357 

state  citizenship  is  the  source  and  imperial  citizenship  the 
consequence.  Citizenship  of  a  particular  state  carries  with 
it  ipso  jure  citizenship  of  the  empire  and  is  an  essential 
condition  of  imperial  citizenship,  for  the  latter  can  be 
acquired  only  through  the  former.  In  the  United  States, 
as  we  have  seen,  one  may  possess  national  citizenship 
without  possessing  the  citizenship  of  a  state ;  but  in  Germany 
it  is  otherwise.  No  one  can  become  a  citizen  of  the  Empire 
without  first  becoming  a  citizen  of  one  of  the  individual 
states.  There  is  no  immediate  naturalization  by  the  empire 
as  such;  the  power  of  conferring  citizenship  rests  with  the 
states,  though  imperial  law  prescribes,  within  certain  limits, 
the  conditions  under  which  it  may  be  granted.  Imperial 
citizenship,  therefore,  is  dependent  upon  the  citizenship  of  interstatt 
some  state  and  is  lost  with  the  loss  of  state  citizenship,  ship  in' 
Contrary  also  to  the  principle  prevailing  in  the  United  Germany 
States,  mere  change  of  residence  from  one  state  of  the  em- 
pire to  another  does  not  of  itself  operate  to  divest  one  of 
the  citizenship  of  the  state  from  which  the  removal  is  made, 
nor  invest  with  the  citizenship  of  the  state  in  which  the 
new  domicile  is  established.  Citizenship  in  the  former 
state  is  retained  until  the  relationship  has  been  dissolved 
by  some  legal  act  of  the  party  in  accordance  with  the 
formalities  prescribed  by  the  law  of  the  state  for  renounc- 
ing citizenship.  It  is  possible,  therefore,  for  one  to  retain 
his  citizenship  in  one  state  for  an  indefinite  period  and  even 
for  the  period  of  his  whole  life,  while  residing  in  another 
state.  In  like  manner,  citizenship  in  another  state  is  not 
acquired  by  merely  establishing  a  domicile  therein,  but  is 
granted  by  the  administrative  authorities  by  formal  act 
only  upon  application  of  the  party.  In  other  words,  a 
citizen  of  one  German  state  becomes  a  citizen  of  another, 
not  alone  by  the  establishment  of  a  residence,  but  by  a 
formal  transaction  between  himself  and  the  state.*  It  is 
not  necessary,  according  to  German  law,  to  relinquish  the 

'  Compare  Howard,  "  German  Empire,"  pp.  144  fiF. 


358  CITIZENSHIP   AND    NATIONALITY 

citizenship  of  one  state  in  order  to  become  a  citizen  of 

another.     Indeed,  one  may  be  a  citizen  of  several  or  even 

of  all  the  German  states  at  the  same  time. 

Citizen-  Swiss  law,  like  that  of  the  German  Empire,  makes  citi- 

Switzer-      zenship  in  a  canton  an  essential  condition  to,  and  the  source 

land  Qf^   citizenship  of  the  confederation.^     Federal  legislation 

prescribes  the  conditions  under  which   foreigners  may  be 

naturalized,  but  the  act  of  naturalization  is  performed  by 

the  government  of  the  canton  in  which   the  applicant  is 

domiciled  and  in  accordance  with    its  own  laws,   though 

the  authorization  of  the  Federal  Council  is  necessary. 

VII.     LOSS   OF   CITIZENSHIP 

As  citizenship  may  be  acquired  by  various  methods^  so 
it  may  be  lost  in  numerous  ways.  Women  lose  their  citi- 
zenship by  marriage  to  aliens.  Under  the  laws  of  many 
states  acceptance  of  service,  civil,  military,  or  naval,  under 
a  foreign  government,  without  the  permission  of  the  govern- 
ment to  which  the  appointee  owes  allegiance,  involves  a 
forfeiture  of  citizenship.  By  the  laws  of  Bolivia  and  Portu- 
gal the  acceptance  of  a  decoration  from  a  foreign  govern- 
ment has  the  same  effect.  In  some  states,  desertion  from 
the  military  or  naval  service  has  the  effect  of  denationaliz- 
ing the  deserter.  In  many  states,  particularly  those  of  Latin 
America,  citizenship  may  be  lost  by  judicial  condemna- 
tion for  certain  causes.  In  a  few  it  may  be  lost  by  expul- 
sion and  in  some  by  dismissal  or  "liberation." 
Loss  of  By  the  law  of  many  states  long  absence  abroad  operates 

S!ip  by"       ^^  expatriate  the  absentee.     Thus  the  law  of  Denmark,  the 
Absence      Netherlands,  and  Sweden  provides  that  ten  years'  consecu- 
tive absence,  without  a  declaration  of  intention  to  the  con- 
trary, works  expatriation,  and  by  Danish  law  the  declaration 

'  Constitution  of  the  Confederation,  art.  43.  See  also  the  act  of  June  25,  1903, 
relative  to  the  naturalization  of  foreigners ;  also  Blumer  and  Morel,  "  Handbuch  des 
schweizerischen  Bundesstaatsrechts,"  vol.  I,  p.  330. 


LOSS  OF   CITIZENSHIP  359 

must  be  repeated  every  two  years.  According  to  Hungarian 
law  ten  years'  residence  abroad  without  a  commission  from 
the  government  has  the  same  effect,  in  the  absence  of  a 
notice  of  intention  to  retain  Hungarian  nationality,  or  the 
performance  of  certain  other  acts  indicating  a  desire  to 
remain  a  Hungarian.  The  law  of  Belgium  provides  that 
settling  in  a  foreign  country  without  intention  of  returning 
shall  have  the  same  effect.  According  to  French  law  the 
maintenance  of  a  permanent  establishment  abroad  was 
formerly  considered  evidence  of  intention  on  the  part  of 
the  absentee  to  abandon  his  French  nationality;  but  the 
practice  now  is  to  consider  the  absentee  a  Frenchman 
until  he  formally  renounces  his  French  nationality  and 
assumes  another.  By  German  law  ten  years  uninterrupted 
residence  abroad  operates  to  expatriate  a  German  subject. 
But  this  period  may  be  "interrupted"  by  registering  with  a 
consul  or  by  procuring  a  passport.  The  period  has  been 
reduced  to  five  years  by  treaty  with  some  states,  provided 
the  absentee  is  naturalized  abroad  at  the  expiration  of  the 
five  years.^ 

By  far  the  most  common  mode,  however,  by  which  citi-  Practice 
zenship  may  be  lost  is  by  the  voluntary  withdrawal  of  the  *^triation 
citizen  from  the  country  of  his  origin  and  his  naturalization 
in  the  state  of  his  adoption.  Regarding  the  right  of  the 
citizen  or  subject  voluntarily  to  expatriate  himself  and 
take  up  a  new  allegiance  without  regard  to  the  will  of  the 
state  of  which  he  is  a  member,  the  attitude  of  governments 
has  differed  widely  in  the  past,  though  the  tendency  every- 
where is  now  to  recognize  the  privilege  as  an  inherent 
right  of  every  individual.  Some,  like  Russia  and  Turkey, 
however,  wholly  deny  the  right  and  allow  no  subject  to 

*  Some  states  make  a  distinction  between  suspension  and  loss  of  citizenship.  Thus 
according  to  the  law  of  Brazil,  Chile,  Ecuador,  Norway,  Peru,  San  Salvador,  and 
Uruguay,  one's  citizenship  may  be  suspended  for  physical  or  moral  incapacity  or 
for  judicial  condemnation  for  certain  crimes.  See  Constitution  of  Brazil,  art.  71; 
Constitution  of  Chile,  art.  9;  Constitution  of  Columbia,  art.  17;  Constitution  of  Ec- 
iiador,  ch.  II,  sec.  2;  Constitutionof  Norway,  art.  51;  Constitutionof  Peru,  art.  40. 


360 


CITIZENSHIP   AND    NATIONALITY 


The 

English 
Common 
Law 
Doctrine 


leave  their  territories  without  the  express  permission  of  the 
state;  and  in  case  a  subject  emigrates  without  such  per- 
mission and  renounces  his  allegiance,  he  will  upon  his 
return  to  the  country  of  his  origin  be  liable  to  arrest  and 
punishment.  Some  states,  like  France,  recognize  the  right 
of  expatriation,  provided  there  exists  at  the  time  of  emi- 
gration no  unperformed  military  service,  otherwise  natu- 
ralization by  a  foreign  government  will  be  considered 
void,  and  upon  the  return  of  the  person  so  naturalized 
he  will  be  liable  to  trial  and  punishment  under  the  mili- 
tary laws.  Some,  like  Switzerland,  admit  the  right  of 
expatriation,  but  do  not  recognize  the  legality  of  naturali- 
zation in  a  foreign  country  unless  the  person  so  natu- 
ralized makes  an  express  and  formal  written  renunciation 
of  his  original  citizenship,  in  the  country  of  origin  and 
according  to  the  forms  prescribed  by  its  laws,  and  also 
furnishes  proof  of  his  naturalization  abroad.  Others,  like 
Venezuela,  recognize  the  right  of  expatriation,  but  upon  the 
return  of  the  person  so  naturalized  to  his  original  country, 
he  will  be  allowed  to  resume  his  original  nationality  with- 
out further  formality.  Japan  excepts  from  the  right  of 
expatriation  all  males  over  seventeen  years  of  age  who 
have  not  performed  their  service  in  the  army  or  navy  in 
pursuance  of  the  conscription  law,  and  also  those  in  the 
military  and  civil  service  who  have  not  obtained  permission 
to  emigrate.^  Most  governments  now  freely  admit  the 
right  of  expatriation  and  consider  the  original  nationality 
to  be  terminated  at  the  moment  when  the  act  of  naturali- 
zation by  the  foreign  government  has  been  completed. 

The  doctrine  of  the  English  common  law  was  that  of 
indefeasible  allegiance,  the  nemo  potest  exuere  patriam  of  the 
Roman  law,  that  is,  the  subject  could  not  of  his  own  motion 
throw  off  his  allegiance  for  another.  Once  an  Englishman 
always  an  Englishman,  was  the  rule  stated  in  an  aphorism, 
except  that  the  old  allegiance  might  be  abandoned  for  a 

'  U.S.  Citizenship  Report,  p.  444. 


LOSS   OF   CITIZENSHIP  361 

new  one  with  the  consent  of  the  sovereign.  Without  such 
consent,  naturalization  by  a  foreign  government  had  no 
effect  upon  the  former  nationahty.  The  tendency  of  the 
early  jurists  and  commentators  in  the  United  States  was 
to  hold  that  the  English  common  law  rule  of  indefeasible 
allegiance  prevailed  in  this  country,  and  hence  no  American 
citizen  could  renounce  his  allegiance  without  the  permission 
of  the  government.  This  was  the  opinion  of  Chancellor 
Kent  and  of  many  of  the  early  American  publicists,  with 
the  notable  exception  of  Jefferson,  who  vigorously  supported 
the  right  of  voluntary  expatriation.*  Judge  Story,  in  a 
celebrated  case,  laid  down  the  rule  that  no  individual 
could  by  act  of  his  own  and  without  the  consent  of  his 
government  put  off  his  allegiance  and  become  an  alien, 
and  this  doctrine  was  generally  approved  by  the  courts 
and  commentators.^ 

The  opinions  of  the  executive  department  varied  at  first  Early 
more  widely,  but  as  time  passed  the  right  of  expatriation  o^njo"" 
came   to   be   recognized   almost   without   dissent.     James  and 
Buchanan,  in  1845,  then  Secretary  of  State,  first  asserted 
it  to  be  an  unqualified  right  of  the  citizen  or  subject;  and 
several   years   later,    in   a   dispatch    to   George    Bancroft, 
Minister  to  England,  he  instructed  him  to  resist  the  British 
doctrine  of  perpetual  allegiance  and  maintain  the  American 
principle  that  natural-born  subjects  of  Great  Britain  who 
should  become  naturalized  under  the  laws  of  the  United 
States  were  as  much  American  citizens  and  entitled  to  the 
same  degree  of  protection  as  though  they  had  been  born  in 
the  United  States.^     For  a  while  after  Buchanan's  retire- 
ment  the   executive   department   reverted   to   the  earlier 

^  Jefferson's  Works,  vol.  IV,  p.  37. 

*  See  also  2  Kent's  Commentaries,  p.  49;  Wharton,  "Conflict  of  Laws,"  sec.  5; 
Lawrence's  "Wheaton,"  i  App.  p.  918;  Moore's  "Digest,"  vol.  Ill,  sees.  431- 
433;  Inglis  V.  Trustees  of  Sailors'  Snug  Harbor,  3  Pet.  99;  Shanks  i*.  Dupont, 
3  Pet.  242;  Talbot  v.  Jansen,  3  Dall.  133;  Murray  v.  Schooner  Charming  Betsey^ 
2  Cranch  64. 

^  Moore's  "Digest,"  vol.  Ill,  p.  566;   also  his  "American  Diplomacy,"  ch.  VII. 


362  CITIZENSHIP   AND   NATIONALITY 

Right  of     doctrine;  but  both  Marcy  and  Cass  as  Secretaries  of  State 
Uon^^cog-  reasserted  the  unqualified  right  of  expatriation ;  and  finally 
nized  in      Congress,  by  an  act  passed  in  1868,  declared  it  to  be  an  "in- 
states and  herent  right  of  all  people,"  and  asserted  that  "any  declara- 
Engiand      tion,  instruction,   opinion,    order,    or   decision  .   .   .  which 
denies,  restricts,  or  impairs  the  right  of  expatriation"  was 
"incompatible   with    the   fundamental    principles   of   this 
government."     The  act  further  declared  that  naturalized 
citizens  of  the  United  States  should  while  abroad  be  en- 
titled to  the  same  protection  that  is  accorded  natural-born 
citizens  and  that  it  should  be  the  duty  of  the  President  to 
use  any  means  not  amounting  to  war  to  enforce  this  view  as 
against  any  government  which  should  deprive   any  natu- 
ralized American  of  his  liberty  contrary  to  this  principle. 
This  law  "s  still  in  force/     Two  years  later  Great  Britain 
by  an  act  of  Parliament  abandoned  the  doctrine  of  indelible 
allegiance  and  adopted  the  rule  that  any  British  subject, 
not  under  disability,  and  voluntarily  naturalized  in  a  foreign 
state,  should  cease  to  be  a  British  subject.^     This  ended  a 
long  controversy  between  the  two  governments,  concern- 
ing the  refusal  of  Great  Britain  to  recognize  the  legality 
of  the  acts  by  which  British  subjects  were  naturalized  in 
the  United  States  —  a  controversy  which  had  been  one 
of  the  chief  causes  of  the  War  of  1812. 
Denied  by       Turkey  and  Russia,  as  has  been  stated,  do  not  recognize 
and  ^^       the  right  of  voluntary  expatriation;   and   if  a  subject  of 
Russia        either  state  becomes  naturalized  abroad  without  the  per- 
mission of  his  government,  such  naturalization  is  treated  as 
having  no  efTect.     Many  states  of  Europe,  while  willing  to 
naturalize  aliens  of  Ottoman  nationality  and  protect  them 
in    other    countries    equally    with    native-born     subjects, 
nevertheless  refuse  to  grant  them  protection  whenever  they 
return  to  Turkey.     Some,  however,  like  France,  Belgium, 

^  Revised  Statutes  of  the  United  States,  sees.  1 999-2001. 

'  Act  of  May  14,  1870.     For  a  discussion  of  the  English  doctrine  at  present,  see 
Phillimore,  "International  Law,"  vol.  IV,  p.  195. 


WHAT   CONSTITUTES   EXPATRIATION?  363 

and  Holland,  refuse  to  naturalize  Ottoman  subjects  unless 
they  are  able  to  produce  a  permit  from  the  Turkish  gov- 
ernment authorizing  their  naturalization.  The  United 
States  stands  practically  alone  in  claiming  for  its  natu- 
ralized citizens  of  Turkish  origin  the  same  right  when  they 
return  to  Turkey  that  they  enjoy  in  other  countries. 

Most  states  make  provision  by  which  the  original  citi-  Repa- 
zenship  of  a  subject  who  has  become  naturalized  abroad  *"***°'* 
may  be  resumed.  Such  an  act  is  referred  to  variously  as 
reversion  of  nationality,  repatriation,  and  redintegration. 
According  to  Belgian  and  French  law,  resumption  of  citi- 
zenship may  take  place  by  returning  home  and  making  a 
formal  declaration  of  intention  to  reside  there,  and  by  es- 
tablishing a  domicile.  Italian,  Spanish,  and  Portuguese 
law  requires  substantially  the  same  action.  According  to 
British  law  an  Englishman  naturalized  abroad  may  be 
readmitted  to  the  status  of  a  British  subject  by  the  same 
process  that  is  required  of  any  other  alien;  but  while  in  the 
limits  of  the  foreign  state  of  which  he  was  previously  a 
subject  he  will  be  treated  as  an  alien  unless  he  has  ceased 
to  be  a  subject  of  such  state  according  to  its  laws  govern- 
ing expatriation.  United  States  law  makes  no  provision 
in  regard  to  the  repatriation  of  an  American  citizen  who 
has  been  naturalized  abroad,  except  in  the  case  of  women 
married  to  aliens;  but  the  opinion  seems  to  be  that  it  can 
be  accomplished  only  in  the  mode  prescribed  for  the 
naturalization  of  other  aliens. 

VIII.     WHAT   CONSTITUTES   EXPATRIATION? 

According  to  the  practice  of  many  European  states,  as  we  Practice 
have  said,  a  certain  number  of  years  of  residence  abroad,  American 
whether  followed  by  naturalization  In  the  adopted  state  or  Depart- 
not,  operates  to  expatriate  the  absentee;  but  the  practice  state 
of  the  United  States  government  has  been  to  treat  contin- 
ued absence  from  the  country  only  as  a  presumption   of 


364  CITIZENSHIP   AND    NATIONALITY 

intention  to  abandon  its  nationality.  Indeed,  as  Secretary 
Fish  said,  in  1873,  "continuous  absence  from  this  country 
does  not  necessarily  presume  expatriation,"  since  there  may 
always  be  the  purpose  of  returning.  "A  citizen  of  the 
United  States,"  said  Secretary  Evarts,  in  1879,  "may  be 
absent  from  this  country  for  an  indefinite  period  for  purposes 
of  education,  of  business,  or  of  pleasure,  and  so  long  as  he 
does  no  act  or  assumes  no  obligation  inconsistent  with  his 
native  or  acquired  citizenship  in  this  country  he  is  not  held 
under  our  laws  to  have  forfeited  any  of  his  rights  as  a  citizen 
of  the  United  States."  The  question  of  the  loss  of  citizen- 
ship is  determined  largely  by  the  intent  of  the  party,  which 
intention  is  to  be  inferred  from  his  acts  and  all  the  surround- 
ing circumstances  of  the  case.  It  is  not  to  be  determined 
by  mere  lapse  of  time  or  term  of  residence  abroad,  however 
extended  in  duration. 
Act  of  The  recent  act  of  March  2,  1907,  relative  to  the  expatria- 

J^^7^  ^'  tion  of  citizens  and  their  protection  abroad,  represents  the 
first  attempt  to  define  by  legislative  act  what  acts  shall 
aperate  to  expatriate  an  American  citizen.  This  law 
enacts,  first,  that  any  American  citizen  shall  be  deemed  to 
have  expatriated  himself  when  he  has  been  naturalized 
in  any  foreign  state  in  conformity  with  its  laws  or  when  he 
has  taken  an  oath  of  allegiance  to  any  foreign  state;  and, 
second,  that  when  any  naturalized  citizen  shall  have  resided 
for  two  years  in  the  state  of  his  origin,  or  five  years  in  any 
other  foreign  state,  it  shall  be  presumed  that  he  has  ceased 
to  be  an  American  citizen  .  .  .  provided,  however,  that  such 
presumption  may  be  overcome  on  the  presentation  of 
satisfactory  evidence  to  a  diplomatic  or  consular  officer  of 
the  United  States,  and  provided  also  that  no  American  citi- 
zen shall  be  allowed  to  expatriate  himself  when  the  United 
States  is  at  war.^     Under  this  act  an  American    citizen 

^  Sec,  2.  Sec.  15  of  the  naturalization  act  of  June  29,  1906,  declares  that  if  any 
naturalized  citizen  shall  within  five  years  after  naturalization  take  permanent  resi- 
dence in  any  foreign  country  it  shall  be  considered  prima  facie  evidence  of  intent  to 


THE   STATUS   OF   ALIENS  365 

may  still  reside  abroad  indefinitely  as  before,  though  after 
two  years'  residence  in  the  country  of  origin  or  five  years  in 
another  country  the  abandonment  of  his  American  national- 
ity will  be  presumed  and  the  burden  of  proving  an  intention 
to  the  contrary  will  rest  upon  him. 

IX.    THE   STATUS   OF   ALIENS  * 

Aliens  are  of  two  classes :  first,  those  who  have  estab-  classes  of 
lished  a  residence  in  the  state,  who  are  designated  as  resi-  ■^''®°' 
dent  or  domiciled  aliens;  and  second,  those  who  are  mere 
temporary  sojourners.  Again,  they  may  be  subjects  of  a 
friendly  power,  in  which  case  they  are  styled  alien  friends; 
or  they  may  be  the  subjects  of  a  hostile  state,  in  which 
case  they  are  described  as  alien  enemies.  Although  in 
a  political  sense  aliens  are  members  of  other  states, 
legally,  they  are  fully  subject  to  the  jurisdiction  of  the 
state  in  which  they  are  domiciled  or  in  which  they  are 
sojourning;  unless,  as  is  the  case  with  diplomatic  represen- 
tatives, they  are  exempt  from  the  local  jurisdiction  by  treaty 
stipulation  or  the  law  of  nations.  They  are  held  to  owe  the 
state  in  which  they  are  domiciled  a  local  and  temporary 
allegiance,  which  continues  during  their  residence  and  for 
the  violation  of  which  they  are  liable  to  prosecution  for 
treason  equally  with  a  citizen.^  Aliens  must  obey  the  laws 
of  the  state  in  which  they  are  domiciled  or  suffer  punish- 
ment equally  with  citizens.     And  they  must  also  share  in 

abandon  his  citizenship  and  in  the  absence  of  countervailing  evidence  his  naturali- 
zation certificate  may  be  canceled.  The  constitution  of  Mexico,  art.  10,  declares 
that  the  naturalization  of  an  alien  is  rendered  void  by  two  years'  residence  in  the 
country  of  his  birth  except  with  the  permission  of  the  government;  that  is,  the  two 
years*  residence  is  not  merely  presumption  of  abandonment  of  the  new  citizenship, 
but  is  absolutely  conclusive. 

'  For  an  excellent  brief  discussion  of  the  rights  of  aliens,  see  Bonfils,  "Manuel 
de  Droit  international  public,"  sees.  441-454;  see  also  Meili,  "International  Com- 
mercial and  Civil  Law,"  sees.  41  ff. ;  Webster,  "Law of  Citizenship,"  pp.  289  ff.; 
Wise,  "Citizenship,"  pp.  267  ff. ;  Moore,  "Digest,"  vol.  IV,  sees.  534-558;  "Eng- 
lish and  American  Encyclopedia  of  Law,"  vol.  II,  art.  "Aliens." 

2  Carlisle  v.  U.S.,  16  Wall.  147  (1872). 


366 


CITIZENSHIP   AND    NATIONALITY 


Liability 
to  Con- 
scription 
in  the 
Military 
Service 


Right  to 
Protec- 
tion 


the  public  burdens  equally  with  citizens.  The  settled 
opinion  seems  to  be  that  they  are  not  liable  to  conscription 
into  the  military  service,  though  the  British  government 
admitted,  during  the  American  Civil  War,  when  complaint 
was  made  that  British  subjects  were  being  forced  to  serve 
in  the  Virginia  and  Missouri  militia,  that  "there  was  no 
rule  or  principle  of  international  law  which  prohibits  the 
government  of  any  country  from  requiring  aliens  resident 
within  its  territories  to  serve  in  the  militia  or  police  of  the 
country,  or  to  contribute  to  the  support  of  such  establish- 
ment." ^  During  the  Civil  War  all  aliens  who  had  held 
office  or  exercised  the  right  to  vote  at  a  state  election  were 
held  to  be  liable  to  conscription  in  the  national  forces  and 
the  act  of  Congress  of  March  3,  1863,  declared  that  the  levy 
should  include  "all  persons  of  foreign  birth  who  shall  have 
declared  on  oath  their  intention  to  become  citizens."  ^ 
Upon  the  suggestion  of  the  British  government  that  a  dis- 
tinction ought  to  be  made  between  declarants  who  had 
exercised  any  political  franchise  and  those  who  had  not, 
and  that  the  latter  should  be  allowed  a  reasonable  period 
to  withdraw  from  the  United  States  if  they  so  elected,  the 
government  allowed  sixty-five  days  to  such  persons  to  leave 
the  country.  Thereupon  the  British  government  declined 
to  intervene  on  behalf  of  those  who  neglected  to  avail 
themselves  of  the  opportunity.^  The  law  of  Mexico  de- 
clares that  aliens  shall  be  exempt  from  military  service,  and 
if  domiciled  within  the  state  they  are  bound  to  perform 
police  service  when  the  security  of  property  or  the  main- 
tenance of  local  order  requires  it.^ 

Among  the  rights  which  aliens  are  universally  admitted 
to  possess  is  that  of  protection  in  their  persons  and  property. 
Most  governments  of  Europe  and  America  grant  the  same 


*  Moore's  "Digest,"  vol.  IV,  p.  57.  ^  12  Statutes  at  Large  731. 
'  See  Halleck's  "International  Law  "  (Baker's  ed.),  vol.  I,  p.  305. 

*  Law  of  1886,  art  37.    As  to  the  right  to  require  aliens  to  aid  in  the  local  defense, 
see  Bonfils,  "Manuel  de  Droit  international  public,"  sec.  445. 


THE   STATUS   OF   ALIENS  367 

measure  of  personal  protection  to  aliens  as  to  citizens,  and 
in  general  make  no  distinction  between  them  so  far  as  the 
enjoyment  of  civil  rights  is  concerned,  though  as  regards 
political  privileges  they  are  usually  subject  to  certain  dis- 
abilities. If  they  suffer  injury  during  times  of  riot,  disor- 
der, insurrection,  or  civil  war,  they  are  in  the  same  position 
as  citizens  and  can  lay  claim  to  no  greater  degree  of  pro- 
tection than  is  accorded  to  natives.  But  it  is  now  a  settled 
principle  of  international  law  that  the  government  to  which 
they  are  for  the  time  subject  is  liable  for  any  injuries  which 
they  may  sustain  on  account  of  attacks  upon  them  because 
of  their  foreign  nationality,  if  the  local  authorities  fail  to 
use  reasonable  diligence  to  prevent  or  punish  such  crimes. 
The  United  States  government  has  uniformly  refused  to 
admit  such  a  liability,  but  in  a  number  of  cases  it  has 
indemnified  the  injured  parties  or  their  heirs  by  a  money 
compensation.^  But  the  injured  alien  must  first  exhaust 
the  judicial  remedies  before  resorting  to  diplomatic  inter- 
position. In  the  United  States  both  the  federal  and  state 
courts  are  open  to  aliens  on  the  same  terms  as  to  citizens.  Right  to 
and  as  regards  the  right  to  sue  in  the  federal  courts  resi-  c"ur?s*^* 
dence  in  the  United  States  is  not  necessary.^  Some  coun- 
tries in  their  treatment  of  aliens  make  special  discrimina-  Discrimi- 
tions  against  certain  classes  on  account  of  their  race,  creed,  °^*\°° 

°  _  '  '    against 

or  occupation.     Russia,    for  example,   has   long  discrimi-  Aliens 
nated  against  Jews  in  respect  to  holding  property,  engag- 
ing  in   certain   occupations,   and   traveling   or  settling  in 
the  country. 

Formerly  aliens  were  subject  to  disabilities  much  more  Disabm- 
numerous  and  onerous  than   now.     Such   were  the  droit  ^j?  °* 
d'aubaine  and  the  droit  de  detraction,  according  to  which 

^  This  was  done,  for  example,  in  the  case  of  the  anti-Spanish  riots  at  New  Orleans 
and  Key  West  in  1851 ;  the  anti-Chinese  riot  at  Rock  Springs,  Wyoming,  in  1SS5  ;  and 
the  Italian  iynchings at  New  Orleans  in  1891.     Moore's  "Digest,"  sees.  1023-1026. 

-  Breedlove  v.  Nicolet,  7  Pet.  413.     This  privilege  applies  to  foreign  corporations 

as  well  as  to  natural  persons. 


36S 


CITIZENSHIP   AND    NATIONALITY 


In 

England 
and  the 
United 
States 


the  property  of  aliens  escheated  to  the  state  in  which 
they  died,  or  was  subject  to  partial  confiscation.  These 
disabilities  were  common  to  European  law  a  century  ago, 
but  were  never  recognized  as  being  in  force  in  the  United 
States,  and  in  some  of  the  early  treaties  with  European 
countries  stipulations  were  entered  into  for  the  abolition 
of  the  practice.  At  English  common  law  an  alien  might 
take  real  property  by  purchase  or  grant,  that  is,  by  act 
of  the  parties,  though  not  by  descent,  that  is,  by  act 
of  the  law.*  In  the  latter  case  the  land  could  be  held  as 
against  all  parties  but  the  state.  But  the  disabilities  of  the 
common  law  in  respect  to  the  inheritance  of  land  have  been 
removed  or  modified  by  statute  both  in  England  and  Amer- 
ica. Thus  the  British  naturalization  act  of  1870  declares 
that  real  and  personal  property  of  every  description  may 
be  taken,  acquired,  and  disposed  of  by  an  alien  in  the 
same  manner  in  all  respects  as  by  a  native-born  British 
subject,  and  a  title  to  real  and  personal  property  of  every 
description  may  be  derived  through,  from,  or  in  succession 
to,  an  alien  in  the  same  manner  in  all  respects  as  from  or 
in  succession  to  a  native-born  British  subject.^ 

In  England  an  alien  may  now  hold  all  forms  of  personal 
property  except  British  ships, ^  though  prior  to  1844  he  was 
disqualified  from  holding  certain  other  descriptions  of  per- 
sonal property.  In  the  United  States,  where  the  owner- 
ship of  property  is  within  the  control  of  the  states  except 
in  the  territories  and  in  those  portions  of  the  country 
which  are  under  the  exclusive  jurisdiction  of  the  national 
government,  the  right  of  aliens  in  respect  to  the  acquisition 
and  holding  of  property  depends,  of  course,  upon  the  laws  of 
the  different  states  in  which  the  lands  are  situate.  Most 
of  the  states  now  permit  aliens  to  acquire  and  own  lands 


•  Justice  Story  in  Fairfax's  Devisee  v.  Hunter's  Lessee,  7  Cranch  619.  See  list  of 
cases  on  this  point  in  the  "  English  and  American  Encyclopedia  of  Law,"  art. 
"Aliens." 

'  Sec.  2.  *  Ibid.,  sec.  14. 


THE   STATUS   OF   ALIENS  369 

on  an  equal  footing  with  citizens,  though  in  a  few,  like  Kan- 
sas and  Idaho,  the  common  law  disability  still  remains. 
Many  states  distinguish  in  this  respect  between  resident  and 
non-resident  ahens,  excluding  the  latter  from  owning  real 
estate.  A  few,  like  Alabama,  however,  permit  non-resident 
and  resident  aliens  alike  to  take  lands  by  descent  as  well  as 
by  purchase.  Under  the  laws  of  Delaware,  Kentucky,  New 
York,  and  Washington  an  alien  who  has  declared  his  in- 
tention of  becoming  a  citizen  of  the  United  States  enjoys 
greater  rights  in  respect  to  the  holding  of  property  than 
other  aliens;  and  in  some  states,  notably  in  Illinois  and 
Idaho,  aliens  may  be  employed  on  -public  works,  while 
others  may  not.  With  regard  to  the  right  of  ahens  to  hold 
land  in  places  subject  to  the  exclusive  jurisdiction  of  the 
national  government,  Congress  has  enacted  that  no  alien 
or  foreign  corporation  shall  be  allowed  to  acquire  or  hold 
land  in  the  District  of  Columbia,^  and  that  no  alien  who 
has  not  declared  his  intention  to  become  a  citizen  of  the 
United  States  may  own  lands  in  any  of  the  territories  un- 
less the  right  is  secured  to  him  by  treaty.^ 

In  some  instances  treaties  have  been  entered  into  by  Treaty 
which  aliens  are  allowed  to  purchase  and  hold  lands  in  Aifen?°* 
the  United  States,  and  although  under  the  reserved  powers 
of  the  states  the  right  of  foreigners  to  acquire  title  to  real 
estate  is  dependent  upon  the  laws  of  the  states,  as  has 
been  said,  the  Supreme  Court  has  held  that  the  treaty  right 
is  paramount.  Hence  a  state  statute  prohibiting  aliens 
from  holding  lands  is  inoperative  so  far  as  it  relates  to  the 
citizens  or  subjects  of  a  foreign  country  who  have  been  given 
the  right  by  treaty.^  The  power  of  the  national  author- 
ities thus  to  abridge  by  treaty  the  right  of  the  states  to  pre- 
scribe the  conditions  of  land  tenure  within  their  borders  was 
earlydenied,  butthe  SupremeCourt  of  the  United  States  has 
held  that  such  treaty  stipulations  are  clearly  within  the  com- 

*  Act  of  March  3,  1887.  ^  Act  of  March  2,  1897. 

^  Chirac  v.  Chirac,  2  Wheat.  249. 
POL.  SCI.  —  24 


370  CITIZENSHIP   AND   NATIONALITY 

petence  of  the  national  government.^  In  short,  the  national 
government  possesses  the  constitutional  power  to  remove 
the  disabilities  of  alienage  with  regard  to  the  Inheritance  of 
real  estate  and,  when  It  acts,  all  laws  of  the  states  In  contra- 
vention thereto  are  Inoperative  and  void.  But  It  Is  doubtful 
whether  the  treaty-making  power  extends  to  such  matters 
as  the  conferring  upon  aliens  of  equal  privileges  with  citi- 
zens in  the  public  schools  of  the  states.^  Nevertheless,  it  has 
recently  been  held  that  a  statute  of  New  York  forbidding 
the  employment  of  aliens  on  public  works  violates  a  treaty 
between  the  United  States  and  the  king  of  Italy,  providing 
that  resident  Italians  in  the  United  States  shall  enjoy  the 
same  rights  and  privileges  as  citizens  of  the  United  States, 
and  Is  therefore  void.  The  Italian  civil  code  expressly 
declares  that  aliens  shall  enjoy  the  same  civil  rights  as 
citizens.^     This  Is  the  tendency  of  modern  legislation. 

"  Modern  international  law,"  says  Professor  Melli,  "starts 
with  the  proposition  that  aliens  are  as  much  entitled  to  the 
rights  of  private  law  as  are  natives."  *  Some  states,  like 
Austria  and  France,  follow  the  rule  of  reciprocity  and  accord 
to  aliens  In  their  territories  the  same  civil  rights  as  are 
accorded  to  their  citizens  or  subjects  in  foreign  states.^ 
Some  countries,  of  which  Roumania  is  an  example,  abso- 
lutely forbid  aliens  to  own  landed  property  except  In  cities.^ 

^  Hauenstein  v.  Lynham,  loo  U.S.  483. 

*  These  two  questions  were  involved  in  the  recent  controversy  with  Japan  with 
regard  to  privileges  of  Japanese  subjects  in  the  public  schools  of  California.  The 
Board  of  Education  of  the  city  of  San  Francisco  passed  an  ordinance  providing 
for  the  segregation  of  Japanese  school  children  in  a  certain  school,  whereupon 
the  Japanese  government  protested  and  laid  claim  to  equal  privileges  with  citizens. 
The  Japanese  government  based  its  claim  on  the  treaty  of  1894,  which  stipulates  for 
full  liberty  of  travel  and  residence  in  the  United  States  and  full  and  perfect  protec- 
tion of  person  and  property.  See  Hershey,  "The  Japanese  School  Question,"  in 
"Political  Science  Review,"  vol.  I,  p.  393. 

»  Art.  3. 

*  "International  Commercial  and  Civil  Law,"  trans,  by  Kuhn,  sec.  41;  see  also 
Bonfils,  op.  cit.,  sec.  449. 

»  French  Civil  Code,  art.  11 ;  Civil  Code  of  Austria,  sec.  33. 

*  Constitution,  art.  7. 


THE   STATUS   OF   ALIENS  371 

For  the  enjoyment  of  political  or  public  rights,  alienage  Political 
generally  disqualifies.  Thus  in  Great  Britain,  where  for-  ^^'^^ 
eigners  are  on  a  footing  of  equality  with  citizens  so  far  as 
civil  rights  are  concerned,  they  are  ineligible  to  public 
office  and  are  disqualified  from  exercising  any  parliament- 
ary, municipal,  or  other  franchise/  In  the  United  States 
an  alien  cannot  be  a  master  of  a  vessel  registered  under  the 
navigation  laws.  Citizenship  is  required  by  the  federal 
constitution  for  membership  in  both  Houses  of  Congress,  and 
for  the  office  of  President  and  Vice  President,  though  there 
seems  to  be  no  statutory  requirement  in  this  respect  with 
regard  to  other  offices.  Aliens  who  have  declared  their 
intention  of  becoming  citizens  of  the  United  States  are 
allowed  to  vote  at  state  and  national  elections  in  a  number 
of  states,  and  as  a  consequence  may  probably  hold  office.^ 

It  is  hardly  necessary  to  add  that  the  undoubted  right  Right  of 
which  every  state  has  to  determine  for  itself  who  shall  live  ^^ 
within  its  borders  carries  with  it  the  right,  in  the  absence 
of  treaty  stipulations  to  the  contrary,  to  expel  from  its 
territories  aliens  whose  presence  is  considered  detrimental 
to  the  public  interest,  and  to  refuse  admission  for  the  same 
reason  or  admit  upon  such  conditions  as  it  may  see  fit  to 
prescribe.  This  follows  as  a  logical  consequence  of  the  sover- 
eignty of  the  state.  In  ancient  times,  says  Bonfils,  collec- 
tive expulsion  of  aliens  was  frequently  resorted  to,  though 
in  modern  times  it  has  rarely  been  followed  except  in  case  of 
war.'  Some  writers,  like  Bluntschli,  have  denied  the  right 
of  expulsion  except  in  rare  cases  and  under  severe  limita- 

*  Naturalization  Act  of  1870,  sec.  14. 

'  For  example,  in  the  states  of  Arkansas,  Indiana,  Kansas,  Missouri,  Nebraska, 
South  Dakota,  Texas,  Oregon,  and  Wisconsin. 

'  "Manuel  de  Droit  international  public,"  i  sec.  442.  See  also  Vattel,  "Droit 
des  Gens,"  bk.  2,  sees.  94,  loi;  Phillimore,  "International  Law,"  vol.  I,  ch.  10, 
sec.  120;  Moore's  "Digest,"  vol.  IV,  sec.  550;  Danut,  "De  I'Expulsion  des 
T^trangers  "(1902);  Wise,  "Citizenship,"  pp.  269 flf.  The  United  States  Supreme 
Court  has  affirmed  the  right  of  the  government  to  exclude  or  expel  aliens,  as  an  inher- 
ent right  of  sovereignty  and  as  essential  to  self-preservation.  Nishimura  Ekin  v. 
U.S.  (1892),  142  U.S.  659. 


372  CITIZENSHIP   AND    NATIONALITY 

tions,  but  the  practice  of  states  has  been  otherwise.  In  the 
United  States  it  cannot  be  done  by  administrative  act  ex- 
cept in  time  of  war,  though  under  the  ahen  act  in  force  from 
1798  to  1800  the  President  was  given  the  power  to  expel 
such  ahens  as  he  should  deem  to  be  dangerous  to  the  peace 
and  safety  of  the  United  States.  In  Europe  and  Latin 
America,  however,  expulsion  by  administrative  order  or 
decree  is  not  uncommon. 

The  right  of  expulsion,  however,  as  Calvo  observes,  is  not 
without  its  limitations;  and  when  resorted  to  by  a  govern- 
ment in  an  arbitrary  manner  and  without  sufficient  cause, 
the  state  of  which  the  foreigner  is  a  citizen  or  subject  may 
justly  prefer  a  claim  for  what  is  unquestionably  a  violation 
of  international  law  and  may,  if  satisfaction  is  not  given,  in- 
tervene in  behalf  of  the  injured  person.^  This  has  been 
the  attitude  of  the  United  States  government  whenever  the 
rights  of  its  own  citizens  have  been  involved.  It  has  read- 
ily admitted  the  right  of  expulsion  and  has  confined  its 
action  in  such  cases  merely  to  the  employment  of  its  good 
offices  in  behalf  of  the  person  expelled,  except  where  the 
act  was  clearly  arbitrary  and  without  just  cause.^ 

^  According  to  Hall  ("  International  Law,"  p.  24),  expulsion  may  be  resorted  to 
only  in  extreme  cases  and  in  the  manner  least  injurious  to  the  person  affected. 
The  government  exercising  the  power  must,  when  occasion  demands,  state  the 
reason  for  expulsion  before  an  international  tribunal  and,  an  insufficient  reason  or 
none  being  advanced,  accept  the  consequences. 

''  For  instances  of  such  cases,  see  Moore's  "Digest,"  sec.  551. 


CHAPTER   XII 

THE   CONSTITUTION   OF  THE  STATE 

Suggested  Readings:  Amos,  "Science  of  Politics,"  ch.  i;  BoR- 
GEAUD,  "Adoption  and  Amendment  of  Constitutions,"  chs.  i,  6; 
BouTMY,  "Constitutional  Studies,"  pts.  I  and  II;  Bryce,  "Consti- 
tutions," in  his  "Studies  in  History  and  Jurisprudence"  vol.  I;  Bur- 
gess, "Political  Science  and  Constitutional  Law,"  vol.  I,  pt.  II,  bk. 
I,  ch.  i;  CoOLEY,  "Constitutional  Limitations,"  chs.  i,  4;  also  his 
"Comparative  Merits  of  Written  and  Unwritten  Constitutions,"  in  the 
"Harvard  Law  Review,"  vol.  II;  Dealey,  "Our  State  Constitu- 
tions"; DoDD,  "Modern  Constitutions";  Esmein,  "Droit  constitu- 
tionnel,"  pt.  II,  ch.  7;  Funck-Brentano,  "La  Politique,"  ch.  4; 
Garner,  "The  Amendment  of  State  Constitutions"  in  the  "  American 
Political  Science  Review,"  vol.  I;  Jameson,  " Constitutional  Conven- 
tions," ch.  2;  Jellinek,  "Recht  des  modernen  Staates,"  bk.  II,  ch.  15; 
Lowell,  "The  Government  of  England,"  vol.  I,  ch.  i ;  Maine,  "  Pop- 
ular Government,"  Essay  No.  IV;  McKechnie,  "The  State  and  the 
Individual,"  ch.  5;  Pradier-Fodere,  "Principes  generaux  de  Droit, 
de  Politique,  etc.,  ch.  8;  Schouler,  "Ideals  of  the  Republic," 
ch.  6;  Stimson,  "The  American  Constitution,"  ch.  i;  also  his 
"Federal  and  State  Constitutions  of  the  United  States,"  ch.  i; 
TiEDEMAN,  "The  Unwritten  Constitution,"  ch.  12;  Wilson,  "Con- 
stitutional Government  in  the  United  States,"  ch.  i;  Woolsey, 
"Political  Science,"  vol.  I,  sec.  176. 

I.     DEFINITIONS    AND    DISTINCTIONS 

The  word  "constitution"  as  a  term  of  political  science  The  Term 
was  first  employed  to  designate  certain  laws  or  statutes  tutkm"' 
issued  by  the  English  crown.  Thus  the  famous  statutes  of 
Henry  II  concerning  the  relations  between  the  king  and 
clergy  were  styled  the  "Constitutions  of  Clarendon."  ^  The 
term  was  also  used  in  the  second  and  third  charters  granted 
early  in  the  seventeenth  century  to  the  Virginia  company;^ 
in  William  Penn's  "Frame  of  Government  for  Pennsylva- 

'  Stubbs,  "Select  Charters,"  pp.  137-140. 

^  Preston's  "Documents  Illustrative  of  American  History,"  p.  33 

373 


374  THE   CONSTITUTION   OF   THE   STATE 

nia  "in  1682 ;  in  Sidney's  work  on  government  written  dur- 
ing the  reign  of  Charles  II;  in  the  poHtical  works  of  James 
Harrington ;  and  in  various  other  places.  Among  the  more 
immediate  precursors  of  the  modern  written  constitution 
may  be  mentioned :  the  charters  granted  to  the  English  colo- 
nies in  America;  the  celebrated  "Agreement  of  the  People," 
drawn  up  by  Cromwell's  soldiers  in  1647  ;  "The  Instrument 
of  Government"  of  the  Protectorate,  promulgated  by 
Cromwell  in  1653;  "The  Fundamental  Orders"  of  the  Col- 
ony of  Connecticut  (1639) ;  and  the  various  Declarations 
and  Resolves  drawn  up  by  the  American  colonies  prior  to  the 
Revolution.^  In  the  latter  part  of  the  seventeenth  century 
the  term  gradually  came  to  signify  the  more  fundamental 
laws  and  especially  those  which  related  to  the  organization 
of  the  government.^  The  modern  use  of  the  term  was 
finally  established  when  it  was  applied  to  the  new  instru- 
ments of  government  adopted  by  the  American  colonies 
after  their  separation  from  Great  Britain  in  the  latter  part 
of  the  eighteenth  century.  Since  then  the  term  has  had  a 
definite  and  well-understood  meaning,  namely,  the  body  of 
fundamental  law,  either  written  or  customary,  which  has  to 
do  with  the  organization  of  the  state. 
Every  The  historian  Lecky  speaks  of  the  English  constitution 

must  have  ^^  ^^^  time  of  the  Restoration  of  1660  as  "still  unformed," 
aConsti-  as  though  there  could  be  a  stage  in  the  development  of  the 
state  when  it  was  without  a  constitution.  But  every  com- 
munity entitled  to  the  name  of  a  state,  as  Schulze  remarks, 
must  have  a  constitution,  i.e.  a  collection  of  norms  by  which 
I  the  legal  relations  between  magistracy  and  subjects  is  de- 
termined and  In  accordance  with  which  the  exercise  of  the 
power  of  the  state  is  regulated.  The  state,  in  short,  is 
unthinkable  wi^thout  a  constitution  of  some  kind.^     It  may, 

'Compare  Borgeaud,  "Adoption  and  Amendment  of  Constitutions,"  ch.  i, 
also  an  article  by  the  same  author  in  the  "Political  Science  Quarterly,"  vol.  VII, 
pp.  614  ff.     See  also  Bryce,  "American  Commonwealth,"  ch.  35. 

*  Compare  Macy,  "The  English  Constitution,"  p.  452. 

•  "Deutsches  Staatsrecht,"  vol.  I,  p.  19. 


tution 


DEFINITIONS  AND  DISTINCTIONS  375 

of  course,  be  rudimentary  and  imperfect,  but  its  existence 
is  an  essential  element  of  state  organization. 

The  constitution  may  be  considered  as  an  objective  fact,  in  The  Con- 
which  sense  the  term  refers  to  the  totality  of  the  constituent  ^^^^^^'^^w 

.  _  •'  as  an  Ob- 

elements  which  enter  into  the  physical  and  political  make-  jective 
up  o£the  state.     In  this  sense  the  term  is  used  somewhat  asanin- 
as  it  is  in  natural  science,  as  when  we  speak  of  the  constitu-  strument 
tion  of  an  animal  or  a  plant,  and  hence  includes  the  land  dence 
and  people  as  well  as  the  political  institutions  of  the  state. 
Secondly,  it  may  be  considered  as  an  instrument  of  evidence, 
that  is,  as  a  document  or  collection  of  documents  in  which 
is  embodied  a  description   of  the   fundamental   political 
organization  of  the  state.     It  is,  says  one  writer,  an  ex- 
pression or  embodiment  in  technical  language  of  certain 
formulas  addressed  to  the  citizens  of  the  state.^     The  con- 
stitution as  a  written  instrument  and  the  constitution  as  an 
objective  fact  ought  to  harmonize,  but  owing  to  constantly 
changing  conditions  in  society  there  is  frequent  variance 
between  them. 

A  distinction  is  sometimes  made  between  the  real  and 
the  formal  constitution,  the  one  being  the  actual  historical 
constitution  which  has  evolved  under  the  operation  of  po- 
litical and  social  forces,  and  the  constitution  which  in  fact 
is  administered  and  which  the  people  obey,^  the  other 
being  the  constitution  in  theory,  the  lawyers'  constitution, 
the  actual  legal  instrument  stripped  of  all  its  conventions 
and  historical  addenda.  The  former  is  the  formal  consti- 
tution modified,  expanded,  and  adapted  to  new  conditions 
by  convention  and  extra-legal  practices. 

Popular  usage,  however,  restricts  the  use  of  the  term 
to  that  body  of  fundamental  laws  and  principles  accord- 
ing to  which  the  state  is  objectively  organized  and 
its  functions  exercised    rather   than    its   physical  frame- 

*  Jameson,  "The  Constitutional  Convention,"  p.  66. 

'  Compare  Mulford,  "The  Nation,"  p.  144;  Brownson,  "The  American  Repub- 
lic," p.  218 ;  and  Hurd's  "  Law  of  Freedom  and  Bondage,"  vol.  I,  p.  296. 


376  THE   CONSTITUTION   OF   THE   STATE 

work.  The  term  is  sometimes  used  also  to  designate  an 
ideal,  an  imaginary  model  of  excellence,  rather  than  some- 
thing which  has  a  real  existence,  as  when  we  speak  of  the 
maxims,  the  spirit,  or  the  theory  of  the  constitution,  meaning 
some  supposed  rule  or  principle  to  which  in  our  judgment 
the  constitution  ought  to  conform. 
Defini-  "  By  the  constitutionof  astate,"  said  Sir  JamesMcIutosh, 

the°Con-  "  ^  mean  the  body  of  those  written  or  unwritten  fundamen- 
stitution  tal  laws  which  regulate  the  most  important  rights  of  the 
higher  magistrates  and  the  most  essential  privileges  of  the 
subjects."  ^  "The  term,"  said  George  Cornwall  Lewis,  "sig- 
nifies the  arrangement  and  distribution  of  the  sovereign 
power  in  the  community,  or  the  form  of  the  government."  ^ 
Judge  Cooley  defined  a  constitution  as  "the  fundamental 
law  of  the  state,  containing  the  principles  upon  which 
government  is  founded,  regulating  the  division  of  the 
sovereign  powers  and  directing  to  what  persons  each  of  these 
powers  is  to  be  confided  and  the  manner  in  which  it  is  to  be 
exercised."  "  Perhaps  an  equally  complete  and  accurate 
definition,"  he  continued,  "  would  be  the  body  of  rules  and 
maxims  in  accordance  with  which  the  powers  of  sovereignty 
are  habitually  exercised . "  ^  Charles  Borgeaud ,  a  high  author- 
ity on  the  subject  of  constitutions  as  instruments  of  govern- 
ment, says:  "A  constitution  is  the  fundamental  law  accord- 
ing to  which  the  government  of  a  state  is  organized  and 
agreeably  to  which  the  relations  of  individuals  or  moral 
persons  to  the  community  are  determined.  It  may  be  a 
written  instrument,  a  precise  text  or  series  of  texts  enacted 
at  a  given  time  by  a  sovereign  power;  or  it  may  be  the 
more  or  less  definite  result  of  a  series  of  legislative  acts, 
ordinances,  judicial  decisions,  precedents,  and  customs  of 
diverse  origin  and  of  unequal  value  and  importance."  *  "A 

*  "Law  of  Nature  and  of  Nations,"  p.  65. 

'  "Use  and  Abuse  of  Political  Terms,"  p.  20. 

*  "Constitutional  Limitations  "  (7th  ed.),  p.  4. 

*  "The  Origin  of  Written  Constitutions,"  "Political  Science  Quarterly,"  vol.  VII, 
p.  613.    For  a  slightly  different  definition  by  the  same  author,  see  his  "  Adoption  and 


CLASSIFICATION   OF   CONSTITUTIONS  377 

■constitution  in  the  American  sense  of  the  word,"  said  Mr. 
Justice  Miller,  "is  a  written  instrument  by  which  the  fun- 
damental powers  of  government  are  established,  limited, 
and  defined,  and  by  which  those  powers  are  distributed 
among  several  departments  for  their  more  safe  and  useful 
exercise  for  the  benefit  of  the  body  politic."  ^ 

II.     CLASSIFICATION  OF  CONSTITUTIONS 

Considered  with  reference  to  the  degree  of  popular  par- 
ticipation in  the  government  which  they  allow,  constitu- 
tions have  been  classified  by  various  writers  as  "  free," 
"democratic,"  "aristocratic,"  etc.  Considered  as  instru- 
ments of  evidence,  they  have  been  classified,  first,  as 
cumulative  or  evolved;   and  second,   as  conventional   or 

Amendment  of  Constitutions,"  p.  xv.  Other  definitions  are  the  following:  "A 
constitution  is  a  fundamental  law  or  basis  of  government.  It  is  established  by  the 
people  in  their  original  sovereign  capacity  to  promote  their  own  happiness  and  per- 
manently to  secure  their  rights  of  property,  independence,  and  common  welfare." 
—  Justice  Story.  "The  constitution  of  a  state  or  nation  consists  of  those  of  its  rules  or 
laws  which  determine  the  form  of  its  government  and  the  respective  rights  and 
duties  of  it  toward  its  citizens  and  of  the  citizens  toward  the  government."  —  James 
Bryce,  "American  Commonwealth,"  p.  350.  "The  constitution  of  a  government  is 
the  body  or  collection  of  rules  and  principles  in  accordance  with  which  the  powers  of 
that  government  are  exercised ;  and  a  constitutional  government  is  one  the  powers 
of  which  are  exercised  in  accordance  with  rules  and  principles  which  are  generally 
accepted  as  binding  upon  it  and  usually  followed."  —  Emlin  McClain,  "Constitu- 
tional Law  in  the  United  States,"  p.  11.  "Constitutions  are  the  assemblage  of  those 
publicly  acknowledged  principles  which  are  deemed  fundamental  to  the  government 
of  a  people.  They  refer  either  to  the  relation  in  which  the  citizen  stands  to  the  state 
at  large,  and,  consequently,  to  the  government  or  to  the  proper  delineation  of  the 
various  spheres  of  authority.  They  may  be  collected,  written,  and  may  have  been 
pronounced  at  a  certain  date,  such  as  the  constitution  of  the  United  States ;  or  the 
fundamental  principles  may  be  scattered,  in  acknowledged  usages  and  precedents,  in 
various  charters,  privileges,  bills  of  rights,  laws,  decisions  of  courts,  agreements  be- 
tween contending  or  otherwise  different  parties,  etc.,  such  as  the  constitution  of 
Great  Britain  is."  —  Lieber,  "Political  Ethics,"  vol.  I,  p.  336.  For  other  definitions 
see  Lowell,  ,  "Government  of  England,"  vol.  I,  p.  i;  Paley,  "Moral  and  Political 
Philosophy,"  p.  219;  Moore,  "Government  of  Australia,"  p.  75;  Wood,  "Govern- 
ment and  State,"  ch.  5.  For  a  definition  by  the  United  States  Supreme  Court, 
see  the  case  of  Van  Horn  v.  Dorrance,  2  Dall.  304. 

^  Quoted  by  Morse  in  his  "  Citizenship  by  Birth  and  Naturalization,"  p.  165. 


378  THE   CONSTITUTION   OF   THE   STATE 

enacted.*  To  the  first  class  belong  those  which  have  their 
origin  mainly  in  custom,  and  which  consist  for  the  most  part 
of  accumulated  usages,  common  law  principles,  decisions 
of  courts,  etc.  They  are  the  product  of  historical  evo- 
lution and  growth  rather  than  of  deliberate  and  formal 
enactment.  They  have  no  conscious  starting  point,  are 
not  "struck  off"  at  a  specific  date,  and  they  change  by  slow 
and  gradual  accretion  rather  than  by  formal  legal  processes. 
To  the  second  class  belong  those  which  have  been  formally 
enacted  by  an  assembly,  or  promulgated  by  some  individual, 
usually  a  hereditary  ruler,  at  a  specific  time,  and  the  pre- 
scriptions of  which  are  embodied  in  a  written  instrument. 
Enacted  constitutions  thus  fall  into  two  groups  or  classes: 
first,  those  which  have  their  source  in  a  royal  grant;  and, 
second,  those  which  proceed  from  the  people  organized 
in  constituent  assembly.^ 
Distinc-  The  distinction  between  evolved  and  enacted  constitu- 

between  tions  coincides  roughly  with  the  old  and  commonly  observed 
Evolved  distinction  between  unwritten  and  written  constitutions. 
Enacted  A  so-callcd  uuwrittcn  constitution  is  one  in  which  jnost, 
H°°f^^'  but  not  all,  of  the  prescriptions  have  never  been  reduced 
to  writing;  that  is,  they  have  not  been  proclaimed  by  a 
ruler  or  framed  by  an  assembly  at  a  particular  time  and 
embodied  in  a  formal  written  instrument.  It  consists 
largely  of  a  mass  of  customs,  usages,  and  judicial  decisions, 
together  with  a  smaller  body  of  statutory  enactments  of 
a  fundamental  character,  usually  bearing  different  dates. 
Constitutions  of  this  class  are  not  struck  off  at  once  by 
the  hand  of  man;  they  are  good  illustrations  of  Sir  James 
Mcintosh's  dictum  that  constitutions  grow  instead  of  being 
made. 

^  Jameson,  "Constitutional  Conventions,"  sec.  72;  Lieber,  "Civil  Liberty  and 
Self-government,"  p.  166;  Ordronaux,  "Constitutional  Legislation,"  p.  207.  See 
also  Borgeaud,  "Adoption  and  Amendment  of  Constitutions,"  p.  43;  Lowell, 
"Government  of  England,"  vol.  I,  p.  4. 

*This  corresponds  roughly  to  Borgeaud's  classification  as  (i)  compacts  and 
royal  charters  and  (2)  popular  constitutions.     Op.  cit.,  p.  43. 


tions 


CLASSIFICATION   OF   CONSTITUTIONS  379 

A  written  constitution,  on  the  contrary,  is  one  in  which  Written 
most  of^ the  provisions  are  embodied  in  a  formally  enacted  written" 
written  instrument  or  instruments.     It  is  a  work  of   con-  Consti- 
scious  art  and  the  result  of  a  deliberate  effort  to  lay  down 
once  for  all  a  body  of  coherent  principles  under  which  gov- 
ernment shall  be  organized  and  conducted/     The  distinc- 
tion between  a  written  and  an  unwritten  constitution  corre- 
sponds roughly  to  that  between  statute  and  common  law, 
the  lex  scripta  and  the  lex  non  scripta  of  the  Romans.  Some 
writers  have,  without  doing  violence  to  the  facts,  described 
the  former  as  "statutory"  constitutions  and  the  latter  as 
"common  law"  constitutions. 

Generally,  a  written  constitution  is,  as  has  been  said, 
comprised  within  a  single  document  bearing  a  single  date, 
but  there  are  examples  of  written  constitutions  composed 
of  a  series  of  instruments  bearing  different  dates.  Such  are 
the  ''Lois  constituHonnelles"  of  France,  three  in  number; 
together  with  several  amendments,  which  collectively 
make  up  the  constitution  of  the  French  Republic.  Simi- 
larly the  constitution  of  Austria  embraces  five  fundamental 
statutes,  all,  however,  bearing  the  same  date.     They  could 

^  "An  unwritten  constitution,"  says  Jameson,  "is  made  up  largely  of  customs  and 
judicial  decisions,  the  former  more  or  less  evanescent  and  intangible  since  in  a  written 
form  they  exist  only  in  the  unofficial  collections  or  commentaries  of  publicists  or 
lawyers."  Op.  cit.,  p.  76.  "  It  is  a  record  by  more  or  less  competent  observers  of 
fundamental  changes  which  have  occurred  in  the  structure,  principles,  or  guaranties 
of  the  constitution  considered  as  a  fact.  These  changes  are  not  made,  but  work 
themselves  out  under  the  operation  of  determinate  social  and  political  forces.  They 
do  not  evolve  themselves  per  saltuvi,  as  in  written  constitutions,  but  gradually  and 
continuously.  They  who  transcribe  such  a  constitution  merely  watch,  pen  in  hand, 
the  play  of  the  producing  forces  and  note  results  as  they  are  achieved.  These  results 
become  parts  of  the  constitution  as  a  fact,  and  the  delineation  of  them,  made  by  the 
observer,  a  part  of  theunwritten  constitutionconsidered  asan  instrument  of  evidence." 
Ihid.,  sec.  78.  Compare  Bryce,  "Flexible  and  Rigid  Constitutions,"  p.  6,  an  essay 
originally  published  in  his  "Studies  in  History  and  Jurisprudence,"  vol.  I,  but 
subsequently  reprinted  by  itself  in  a  separate  volume  under  the  above  title.  See 
also  an  article  entitled  "Unwritten  Constitutions  in  the  United  States,"  by  Emlin 
McClain,  "Harvard  Law  Review,"  vol.  XV,  pp.  531-540;  and  an  article  entitled 
"Written  and  Unwritten  Constitutions  in  the  United  States,"  by  the  same  author, 
in  the  "Columbia  Law  Review,"  vol.  VI,  pp.  69  ff. 


380  THE   CONSTITUTION   OF   THE   STATE 

as  well  have  all  been  embraced  within  a  single  document.* 
Again,  the  constitution  of  Hungary  consists  of  a  long  series 
of  statutes  and  diplomas  extending  through  a  period  of 
more  than  six  and  a  half  centuries  (1222-1873).^  Gener- 
ally, a  written  constitution  is  an  instrument  of  special 
sanctity,  distinct  in  character  from  all  other  laws,  pro- 
ceeding from  a  different  source,  having  a  higher  legal  au- 
thority, and  alterable  by  a  procedure  different  from  that 
required  in  amending  an  ordinary  statute.  It  rests  on  the 
principle  of  separation  between  the  constituent  and  law- 
making powers.  In  states  having  written  constitutions 
there  are  thus  two  sets  of  lawmaking  authorities  and  two 
bodies  of  law,  one  constitutional  and  paramount,  the  other 
statutory  and  subordinate.  The  latter,  to  be  valid  or  "con- 
stitutional," must  conform  in  its  provisions  to  the  former. 
Written  The  above-mentioned  distinction,   however,   is  not    al- 

tutions  ways  found  in  states  having  written  constitutions,  though 
framed  by  it  is  usual.  There  are  a  few  examples  of  written  constitu- 
tive Bodies  tions  which  have  not  had  their  source  in  constituent  as- 
semblies, but  have  emanated  from  ordinary  legislative  bod- 
ies, and  differ,  therefore,  from  mere  statutes,  not  in  any  legal 
sense,  but  only  in  the  greater  importance  of  the  subject 
matter  with  which  they  deal.  Thus  the  fundamental  or 
constitutional  laws  of  Austria  and  Hungary  are  nothing  but 
statutes  enacted  by  the  parliaments  of  the  two  countries.^ 
Similarly  the  Italian  constitution  (the  statuto),  though  not  a 
statute  of  parliament  (having  been  granted  by  the  king), 
is  nevertheless  on  a  legal  plane  with  an  ordinary  statute 
and  is  probably  alterable  by  the  ordinary  processes  of  legis- 
lation. So  the  constitution  of  Spain  framed  by  a  constit- 
uent Cortes  contains  no  provision  for  its  amendment,  and 

*  Cf.  Lowell,  "Governments  and  Parties  in  Continental  Europe,"  vol.  II,  p.  74. 

^  Ibid.,  p.  128.  The  text  of  these  constitutions,  translated  into  English,  with 
accompanying  historical  notes  and  select  bibliographies  are  printed  in  Dodd's 
"Modern  Constitutions,"  2  vols.  1909. 

'  The  fundamental  laws  of  Austria,  however,  are  not  alterable  as  ordinary  stat- 
utes.    See  Dodd,  op.  cil.,  vol.  I,  p.  81,  sec.  15. 


CLASSIFICATION   OF   CONSTITUTIONS  381 

can  therefore  probably  be  changed  by  the  legislature  as  an 
ordinary  statute,  though  as  to  this  there  is  some  doubt. 
In  such  states  the  constituent  and  legislative  functions  are 
not  separate,  and  consequently  a  constitutional  enactment 
has  no  superior  legal  force  over  a  statute. 

Not  a  few  written  constitutions  have  had  their  origin,  Consti- 
as  has  been  said,  in  the  grants  of  ruling  princes,  made  often  *^anted 
under  the  pressure  of  necessity  to  prevent  threatened  re-  ^y  Kings 
volt.  Such  a  constitution  or  charter  is  generally  in  the  Pnnces 
nature  of  a  compact  or  pledge,  that  the  ruler  granting  it 
will  govern  according  to  certain  principles  set  forth  in  its 
text.  Sometimes  it  is  stipulated  in  the  constitution  that  it 
shall  not  be  amended  without  the  consent  of  the  people; 
sometimes  the  prince  reserves,  to  himself  the  right  of  altera- 
tion. Examples  of  charters  or  constitutions  of  this  type 
were  those  granted  by  various  liberal  princes  of  Germany 
to  their  subjects  after  18 15,  beginning  with  Nassau  and 
ending  with  Prussia  in  1849,  the  latter  of  which  is  still  in 
force;  the  constitutional  charter  granted  to  the  French  by 
Louis  XVIII  in  18 14  and  regranted  in  altered  form  by 
Louis  Philippe  in  1830;  the  constitutions  granted  by  the 
king  of  Portugal  in  the  early  part  of  the  nineteenth  century; 
various  constitutions  granted  by  Napoleon  to  the  states 
which  fell  under  his  dominion;^  the  present  constitution 
of  Italy,  granted  by  Charles  Albert  to  his  Sardinian  sub- 
jects in  1848,  which  became  the  fundamental  law  of  Italy 
upon  the  establishment  of  the  Italian  kingdom,  and  the 
more  recent  constitutions  of  Japan,  Russia,  Turkey,  and 
Persia.^     Practically  all  the  other  written  constitutions  of 

*  For  a  list  see  Borgeaud,  op.  cit.,  p.  32. 

^  The  late  Judge  Cooley  denied  that  such  documents  were  true  constitutions. 
Nothing  short  of  a  body  of  rules  which  is  permanent  in  character  and  beyond  the 
power  of  any  ruler  to  set  aside  and  whose  source  is  the  people,  he  declared,  was  en- 
titled to  be  ranked  as  a  constitution.  The  mere  grant  by  a  monarch,  he  said,  of  a 
constitution  to  the  people,  did  not  impart  a  constitutional  character  to  the  govern- 
ment so  long  as  he  retained  the  power  to  set  it  aside  at  his  will.  "  Constitutional 
Limitations,"  7th  ed.,  p.  5,  note  2. 


382  THE   CONSTITUTION   OF   THE   STATE 

the  world  have  been  framed  by  constituent  bodies  or 
legislative  assemblies  claiming  constituent  powers.  From 
the  point  of  view  of  their  source  or  origin,  then,  we  may- 
classify  constitutions  as  follows:  (i)  charters  granted  by 
sovereigns  to  their  subjects;  (2)  constitutions  framed  by 
ordinary  legislative  assemblies;  and  (3)  constitutions 
framed  by  constituent  assemblies. 

III.  ANGLO-AMERICAN  AND  FRENCH  TYPES  CONTRASTED 

The  The  best  example  of  an  unwritten  constitution,  so  called, 

Consti-  ^^  that  of  Great  Britain,  "undoubtedly  the  first  of  all  free 
tution  constitutions  in  age,  in  importance,  and  in  originality," 
says  a  brilliant  French  scholar — "a  constitution  which 
existed  with  all  its  main  features  four  hundred  years  earlier 
than  any  other  and  one  which  has  served  more  or  less  as 
the  model  for  all  existing  constitutions."  ^  In  its  nature  it  is, 
says  Br^^ce,  a  "mass  of  precedents  carried  in  men's  minds  or 
recorded  in  writing,  dicta  of  lawyers  or  statesmen,  customs, 
usages,  understandings  and  beliefs,  a  number  of  statutes 
mixed  up  with  customs  and  all  covered  over  with  a  para- 
sitic growth  of  legal  decisions  and  political  habits."  Dicey 
speaks  of  it  as  a  sort  of  maze  in  which  the  wanderer  is  per- 
plexed by  unreality,  by  antiquarianism,  and  by  constitu- 
tionalism. ^  It  is  not  a  subtle  contrivance  of  human  art, 
nor  the  result  of  deliberate  effort;  it  was  never  made  in 
the  sense  in  which  most  others  were,  but  has  grown  up  bit 
by  bit  and  for  the  most  part  silently  and  without  any  ac- 
knowledged authority.  "There  was  never  any  moment," 
observes  Freeman,  the  historian,  "when  Englishmen  drew 
out  their  political  system  in  the  shape  of  a  formal  docu- 
ment." ^    If  it  were  stripped  of  its  conventions  and  displayed 

^  Boutmy,  "Constitutional  Studies,"  2d  ed.,  p.  3. 

^  "The  Law  of  the  Constitution,"  2d  ed.,  p.  7. 

'"Growth  of  the  English  Constitution,"  p.  22.  "The  English  Constitution," 
says  Boutmy  [op.  cit.,  p.  27),  is  made  up,  first,  of  treaties  or  quasi-treaiies  such  as  the 
act  of  union,  1707,  with  Scotland  and  with  Ireland  in  1800  (these  are  "only  the  ad- 


ANGLO-AMERICAN  AND  FRENCH  TYPES  CONTRASTED    383 

in  its  legal  nakedness,  it  would  be  unrecognizable  and 
infeasible.  The  unwritten  part  deals  with  the  organiza- 
tion, privileges,  reciprocal  relations,  and  interaction  of  the 
great  public  powers,  crown,  cabinet,  and  parliament.  **A11 
those  important  matters,"  observes  Boutmy,  "which  are 
the  very  center  and  soul  of  constitutional  law  are  regulated 
in  England  by  simple  custom."  The  very  name  of  the 
cabinet  is  unknown  to  the  written  law.  The  practice  of 
annual  sessions  of  Parliament,  its  division  into  two  houses, 
the  exclusive  power  of  the  House  of  Commons  to  initiate 
revenue  bills,  and  many  other  matters  of  fundamental 
character  are  regulated  wholly  by  custom.  "In  fact,  the 
most  important  part  of  the  political  organization  is  just 
what  is  kept  out  of  the  written  law  and  given  over  to  the 
sole  guardianship  of  custom."  "The  English"  have,  to  Boutmy 
quote  Boutmy  further,  "left  the  different  parts  of  their  English 
constitution   where  the  waves  of  history  have  deposited  po^sti- 

•'  ^  tution 

them;  they  have  not  attempted  to  bring  them  together,  to 
classify  or  complete  them,  or  to  make  of  it  a  consistent 
and  coherent  whole." ^  Many  of  the  customs  and  usages 
which  go  to  make  up  the  constitution  have,  to  be  sure, 
been  reduced  to  writing,  and  some  of  them  have  been 
embodied  in  fundamental  statutes,  but  they  have  never 
been  collected   and   incorporated  in  a  single  act.     When 

denda  to  the  constitution,"  "  the  external  portion  of  it") ;  second,  customs,  generally 
known  as  the  common  law,  the  lex  non  scripta  —  in  reality  they  are  embodied  in 
documents  such  as  judgments,  reports,  legal  opinions,  etc;  third,  compacts 
enacted  like  statutes;  fourth,  statutes  dealing  with  such  matters  as  legal  rights 
and  securities,  religious  liberty,  press,  electoral  privileges.  According  to  Dicey 
the  English  constitution  consists  of  (i)  treaties,  (2)  the  common  law,  (3)  solemn 
agreements,  like  the  Bill  of  Rights,  (4)  statutes.  "Law  of  the  Constitution," 
p.  48.  Again,  says  Dicey,  "  the  English  constitution  is  made  up  of  two  parts ;  first, 
a  body  of  rules,  some  written,  others  unwritten  which  the  courts  will  take  no  notice 
of."  The  former  he  denominates  collectively  as  the  "law"  of  the  constitution,  the 
latter  he  styles  "the  conventions."  For  examples  of  each,  see  his  "Law  of  the 
Constitution,"  pp.  24  ff.  The  English  constitution.  Dicey  remarks,  is  a  judge- 
made  constitution,  and  bears  on  its  face  all  the  features  good  and  bad  of  judge- 
made  law.  Ibid.,  211. 
1  Ibid.,  p.  6. 


384  THE   CONSTITUTION   OF    THE   STATE 

it  comes  to  constitution-making,  the  English  have  never 
shown  the  French  taste  for  simplicity,  logic,  and  uniform- 
ity.    Indeed,  they  seem  deliberately  to  have  avoided  as  a 
dangerous   experiment   any  attempts   at   unity,  at   laying 
down  general  principles,  or  at  assimilation  and  fusion  of  the 
different  parts  of  the   constitution/      Those  parts  of  the 
constitution  which  have  been  reduced  to  written  form  ema- 
nate from  the  same  source,  are  enacted  in  the  same  way, 
have  the  same  legal  authority,  and  are  repealed  or  amended 
Wo  Dis-      in  the  same  way,  as  other  statutes.     There  is,  in  short,  no 
between      Separation  in  England   between  the  constituent  power  and 
the  Con-     the  legislative  power;   both  are  consolidated  in  the  Parlia- 
and  Legis-  ment,  which  is  at  once  legislature  and  constituent  assembly. 
Powers  in    There  is  no  law,  fundamental  or  otherwise,  which  it  cannot 
England      change.^      But  while  the  constitution-making  and  the  law- 
making powers  are  in  the  same  hands,  there  is  a  growing 
feeling  that  fundamental  and  far-reaching  changes  ought 
not  to  be  made  except  as  a  result  of  a  general  election  at 
which   the   proposed   changes   are   the   issues  —  in    short. 
Parliament  ought  to  alter  the  constitution  only  in  obedi- 
ence to  a  mandate  from  the  electorate.^ 

Where  the  constituent  and  legislative  powers  are  in  the 
same  hands,  the  distinction  between  a  "constitutional"  law 
and  an  ordinary  statute  cannot  easily  be  determined. 
There  is  no  exact  juristic  test,  as  in  America,  where  con- 
stitutional provisions  and  statutory  enactments  proceed 
from  different  sources  and  are  altered  and  repealed  accord- 
ing to  different  processes.  Whether  a  given  act  of  the 
British  Parliament,  therefore,  belongs  to  the  category  of 
constitutional  law  or  that  of  ordinary  statute  law  must 
depend,  not  on   its   source  or  manner  of  enactment,  but 

'  Compare  Boutm)',  p.  13. 

'See  on  this  point  Dicey,  "Law  of  the  Constitution,"  lect.  II.  The  legaJ 
omnipotence  of  Parliament  has  already  been  fully  discussed  in  the  chapter  or. 
sovereignty. 

*  Compare  Lowell,  "  Government  of  England,"  vol.  I,  p.  4. 


ANGLO-AMERICAN  AND  FRENCH  TYPES  CONTRASTED    385 

upon  the  character  of  the  act  itself.  If  it  is  fundamental 
in  its  nature,  that  is,  if  it  relates  to  the  distribution  or 
exercise  of  the  sovereign  power  of  the  state,  it  may  be 
classed  as  constitutional,  otherwise  it  falls  within  the  do- 
main of  ordinary  statutory  legislation.  Obviously  it  is 
not  always  easy  to  draw  the  line  between  that  which  is 
fundamental  and  that  which  is  not.  We  should  have 
no  difficulty,  for  example,  in  classifying  as  fundamental  the 
great  acts  of  Parliament  known  as  Magna  Charta,  the  Bill 
of  Rights,  the  Habeas  Corpus  Act,  the  Petition  of  Right,  the 
Act  of  Settlement,  and  possibly  others;  but  we  are  not  so 
certain  as  to  such  enactments  as  the  Municipal  Corporations 
Act  of  1835,  the  suffrage  and  distribution  acts  of  1832,  1867, 
and  1884,  and  the  local  government  acts  of  1888  and  1894.  ' 
In  a  technical  sense  De  Tocqueville  was  correct,  therefore, 
when  he  said  the  British  constitution  had  no  real  existence.^ 
He  meant  by  this  that  there  were  no  laws  in  Great  Britain  No  Legal 
that  could  be  definitely  marked  off  from  other  laws,  as  tionTn 
fundamental,  that  is,  there  was  no  exact  test  for  differen-  England 

...  .   .  between 

tiatmg  between  a  constitutional  provision  and  a  statute.^  a  statute 

In  America,  where  constitutional  and  statutory  enactments  ^fuUonai 

proceed   from  different  sources  and   are  altered    and   re-  Enact- 
pealed  according  to  different  processes,  there  is  no  difficulty 
in  distinguishing  between  that  which  is  constitutional  in 
character  and  that  which  is  statutory. 

In  this  connection  it  should  be  observed  that  "consti-  The  Terms 

tutional"  and  "unconstitutional"  have  different  meanings  iJ^jon^ai'.. 

in  England  and  America.     In  England  a  law  is  "consti-  and"Un- 

tutional"  because  it  is  one  which  is  supposed  to  affect  the  tionai"  in 

fundamental  institutions  of   the   state  and  not  because  it  ^°f^^^ 

arid 

proceeds   from    a  different  source,   has  any  higher  legal  America 

*  "Democracy  in  America."     Trans,  by  Reeves,  vol.  I,  p.  103. 

*  This  is  the  reason,  says  Bryce,  why  the  British  constitution  has  never  been  re- 
duced to  the  form  of  a  statutory  enactment.  Moreover,  since  any  part  might  be 
changed  by  Parliament  as  easily  as  any  other,  little  or  nothing  would  be  gained  by  it. 
It  might  be  done,  however,  as  has  been  done  in  Belgium,  whose  constitution  is  mainly 
a  written  reproduction  of  the  English  constitution. 

POL.  SCI.  —  25 


386 


THE   CONSTITUTION   OF   THE    STATE 


The 
French 
Notion  of 
a  Consti- 
tution 


authority,  or  is  more  difficult  to  change  than  other  laws. 
An  act  of  Parliament  is  sometimes  said  to  be  "unconsti- 
tutional," not  because  it  is  inconsistent  with  some  higher 
law,  for  there  is  no  law  superior  in  authority  to  a  statute 
of  Parliament,  but  because  it  is  supposed  to  be  contrary 
to  the  established  usages  and  customs  of  the  kingdom  or 
the  principles  of  morality,  international  law,  or  the  law 
of  nature.  The  distinction  is  not  between  a  legal  and 
illegal  statute  as  in  America,  for  no  act  of  Parliament 
can  be  "unconstitutional"  in  the  sense  of  being  illegal. 
An  act  of  Parliament,  for  example,  making  a  man  a  judge 
in  his  own  case,  an  act  to  tax  the  colonies,  an  act  to 
deprive  a  man  of  his  property  without  due  process  of  law, 
would  be  "unconstitutional"  only  in  the  sense  of  being  in 
violation  of  ancient  and  well-established  customs  and  not 
because  of  any  inconsistency  with  some  higher  written  law. 
No  court  would  question  such  an  act  or  refuse  to  give  effect 
to  its  provisions,  however  immoral  or  unjust  it  might  seem. 
In  the  United  States,  a  statute  is  said  to  be  "unconstitu- 
tional," not  because  it  is  one  which  does  not  affect  in  a 
fundamental  manner  the  organization  of  the  state  or  its 
institutions,  but  because  it  is  not  in  conformity  with  the 
provisions  of  a  higher  written  law.  In  the  absence  of  such 
conformity  the  statute  is  said  to  be  "unconstitutional," 
which  is  another  name  in  America  for  illegality;  and  the 
courts  exercise  the  authority  of  pronouncing  upon  the  ques- 
tion of  consistency  and  refusing  to  give  effect  to  the  infe- 
rior law  when  it  is  in  conflict  with  the  higher  law. 

We  may  contrast  with  the  British  constitution  some  of 
the  earlier  ones  of  France,  which  are  the  best  representa- 
tives of  the  opposite  theory  that  constitutions  are  made 
rather  than  evolved.  The  French  idea  of  a  constitution 
has  been  that  of  a  written  instrument,  conceived  and 
struck  off  at  once,  and  capable  of  being  fitted  to  the  nation 
for  which  it  is  intended  as  a  suit  of  clothes  may  be  fitted 
to  an  individual.      The  French  have  never  been  impressed 


ANGLO-AMERICAN  AND  FRENCH  TYPES  CONTRASTED    387 

with  the  advantage  of  following  in  old  paths,  constitution- 
ally speaking,  and  of  preserving  continuity  and  connection 
with  the  past.  They  have  oftentimes  allowed  themselves 
to  be  seduced  by  the  fallacy  that  a  nation  may  cut  loose 
entirely  from  its  past,  and  erect  a  new  constitutional 
structure  better  adapted  to  the  needs  of  the  people  than 
any  which  is  the  product  of  growth  and  evolution.  The 
authors  of  the  earlier  French  constitutions,  observes 
Boutmy,  were  in  the  position  of  an  architect  about  to 
erect  a  monument  in  the  center  of  a  public  square;  they 
must  have  a  free  and  clear  space  at  their  disposal.^  They 
went  on  the  principle  that  no  fabric  based  on  history  can 
occupy  fully  the  ground,  and  that  in  the  midst  of  the  site  to 
be  covered  there  should  be  permitted  to  stand  no  part  of  the 
old  edifice  which  may  hamper  the  arrangement  and  com- 
plicate the  plan  of  the  new  constitution.  The  French  also 
attach  great  importance  to  the  constitution  as  a  philo- 
sophical instrument  and  a  work  of  art  and  of  logic.  Order 
and  symmetry  have  been  the  soul  of  their  creations;  they 
have  done  the  work  of  logicians,  engineers,  and  artists. 
Principles  with  them  also  occupy  a  very  important  place. 
Everything  must  be  deduced  from  a  principle  and  every- 
thing must  conform  to  a  principle.  Having  broken  with 
the  past  and  set  aside  all  precedents,  every  important  prin- 
ciple must  be  stated  afresh.  "There  is  a  maxim,"  says 
Boutmy,  "which  has  remained  true  under  all  the  successive 
regimes  in  France,  viz.  that  all  rights  must  be  recorded  in 
writing;  that  no  right  can  come  into  existence  without  a 
document  to  attest  it,  or  be  annulled  without  express  aboli- 
tion. There  is  no  country  where  the  feeling  for  customary 
law  is  more  blunted  than  in  France,  or  where  the  virtue  of 
leaving  things  to  be  understood  is  less  appreciated.  Nor  is 
there  any  country  where  there  is  a  greater  dislike  to  the 
idea  of  an  equity  {droit  pretorien)  which,  while  preserving 
the  form,  changes  the  substance,  of  written  law."' 

*  "Constitutional  Studies,"  p.  167.  '  Ibid.,  p.  168, 


388 


THE   CONSTITUTION   OF   THE   STATE 


Classifi- 
cation of 
Constitu- 
tions as 
Written 
and  Un- 
written 


Written 
Constitu- 
tions con- 
tain an 
Unwritten 
Element 


IV.     WRITTEN   AND   UNWRITTEN   CONSTITUTIONS 

The  classification  of  constitutions  as  written  and  unwritten 
has  been  criticised  on  the  ground  that  the  distinction  be- 
tween them  is  really  one  of  degree  rather  than  of  kind,  and 
hence  does  not  mark  a  contrast  between  widely  differenti- 
ated types.  In  the  first  place,  all  written  constitutions  that 
have  been  in  operation  for  any  considerable  period  of  time 
have  in  fact  become  overlaid  with  an  unwritten  element 
consisting  of  custom  and  judicial  interpretation.  Written 
constitutions,  so  called,  Bryce  remarks,  become  "devel- 
oped by  interpretation,  fringed  with  decisions,  and  enlarged 
by  custom  so  that  after  a  time  the  letter  of  their  texts  no 
longer  conveys  their  full  effect."  ^  The  quantity  of  this 
conventional  element  in  any  case  depends  largely  upon  the 
age  of  the  constitution  and  the  character  of  the  civilization. 
Examples  of  written  constitutions  which  have  become  sup- 
plemented and  modified  by  a  more  or  less  extensive  un- 
written element  are  those  of  the  United  States,  Hungary,  and 
Italy.  Much  of  the  constitution  of  the  United  States, 
particularly  those  parts  relating  to  the  election,  succession, 
tenure,  and  powers  of  the  President,  the  procedure  and  meth- 
ods of  Congress,  and  the  powers  of  the  federal  judiciary,  has 
been  modified  in  important  particulars  by  the  force  of 
precedent,  and  expanded  by  judicial  interpretation.  We 
must  take  exception  to  the  view  of  a  well-known  writer  on 
American  constitutional  law,  that  the  United  States  con- 
stitution "is  peculiar  in  that  it  is  all  written,  that  it  has 
nothing  of  tradition,  that  it  is,  indeed,  in  all  respects,  a 
statute  of  vast  and  solemn  import  enacted  in  the  name  of 
the  people  ...  an  expression  of  legislative  will  in  a  written 
form."  ^  We  do  not,  however,  go  quite  to  the  length  of  an- 
other high  authority  in  holding  that  the  conventional  ele- 
ment in  the  United  States  constitution  is  now  quite  as  large 

'"Constitutions,"  p.  7. 

*  McClain,  "Constitutional  Law  of  the  United  States,"  p.  11. 


WRITTEN   AND   UNWRITTEN   CONSTITUTIONS         389 

as  that  in  the  English  constitution/  but  we  deny  that  "it  is 
all  written  "  and  has  nothing  of  tradition  or  custom  about  it. 
It  is  true,  of  course,  that  the  larger  part  of  it  is  written,  and 
that  what  is  written  is  contained  in  a  single  document,  but 
to  hold  that  there  is  no  conventional  element  intermixed 
with  the  written  part  is  to  close  our  eyes  to  some  of  the  most 
obvious  historical  facts  of  our  constitutional  development.^ 
The  same  is  true  of  the  constitutions  of  Hungary  and  Italy, 
and  to  a  less  extent  of  all  written  constitutions  that  have  be- 
come venerable  with  age.  As  regards  the  constitution  of 
Hungary,  in  particular,  so  much  custom  has  grown  up 
around  it  that  some  writers  do  not  hesitate  to  put  it  in 
the  same  class  with  the  British  constitution. 

Experience  has  demonstrated  the  impossibility  of  em- 
bodying all  the  principles  of  constitutional  law  in  a  written 
document.  Even  if  it  were  possible  to  do  so  in  the  begin- 
ning, the  constitution  would  soon  become  modified  and 
expanded  by  growth  and  custom.^  The  conventional 
element  is,  therefore,  inevitable  and  it  is  certainly  not  to  be 
condemned.  The  French  writer  De  Maistre  has  asserted 
that  what  is  most  intrinsically  constitutional  and  funda- 
mental never  is  or  could  be  written  without  endangering 
the  state.  The  weakness  and  fragility  of  any  constitution, 
he  asserts,  are  in  direct  proportion  to  the  amount  of  the 
written  element.* 

On  the  other  hand,  all  so-called  unwritten  constitutions 
contain  a  very  large  written  element.     Much  of  what  was 

*  Wilson,  "Congressional  Government,"  p.  7.  On  this  point,  see  also  Bryce, 
"  American  Commonwealth,"  chs.  34-35. 

^Compare  on  this  point  Brownson  ("The  American  Republic,"  p.  218),  who 
remarks  that  the  United  States  constitution  is  twofold,  written  and  unwritten  — 
the  constitution  of  the  government  and  the  constitution  of  the  people.  The  former 
is  simply  a  law  ordained  by  the  nation  or  people  instituting  and  organizing  the  gov- 
ernment ;  the  latter  is  the  real  or  actual  constitution  of  the  people  as  a  state  or  sover- 
eign community.  The  unwritten  constitution  is  not  made,  but  is  born  with  the 
nation. 

'  Compare  Lowell,  "Government  of  England,"  Introduction. 

*  Quoted  by  Mulford  in  "The  Nation,"  p.  144. 


390 


THE   CONSTITUTION   OF   THE   STATE 


Constitu- 
tions con 
tain  a 
Written 
Element 


Unwritten  formerly  custom  and  usage  has  been  reduced  to  writing,  and 
this  tendency  increases  with  time.  A  large  part  of  the 
British  constitution,  as  Sir  Henry  Maine  has  pointed  out, 
is  already  written,  particularly  those  parts  which  relate 
to  the  powers  of  the  crown,  the  House  of  Lords,  the  judicial 
power,  much  of  that  which  refers  to  the  House  of  Com- 
mons and  its  relation  to  the  electoral  body/  And  much  of 
that  which  has  been  written  is  only  declaratory  of  what 
was  already  law  by  force  of  custom.  The  great  acts  of 
Parliament,  such  as  Magna  Charta,  observes  Freeman,  were 
not  enactments  of  anything  new,  but  merely  set  forth  in 
written  form  what  was  already  unwritten  law.^  It  is  true 
that  the  written  element  in  the  British  constitution  is 
smaller  in  quantity  than  the  unwritten  part,  and  that 
what  is  written  is  scattered  through  many  documents  bear- 
ing widely  different  dates;  but  it  is  nevertheless  consider- 
able in  quantity  and  important  in  quality.  The  British 
constitution,  therefore,  differs  from  those  of  the  written  type 
not  merely  because  it  contains  many  conventions,  but 
rather  because  its  conventions  are  more  abundant  and  all- 
pervasive  than  the  parts  which  are  written.^ 

The  classification,  therefore,  of  constitutions  as  written 
and  unwritten  is  not  only  confusing  and  unscientific,  but  it 
results  in  placing  in  the  category  of  written  constitutions 
some  which  contain  a  large  element  of  custom  and  conven- 
tion, and  in  the  category  of  unwritten  constitutions  others 
which  to  a  large  extent  have  been  reduced  to  written  form. 
Thus  the  constitutions  of  Hungary  and  Italy  are  both 
usually  classified  as  written,  when  in  reality  they  are  so 
overlaid  with  custom  and  possess  such  a  high  degree  of 
flexibility  that  they  contain  more  elements  of  true  resem- 
blance to  the  British  constitution  than  they  do  to  the 
constitution  of  the  United  States. 


*  "Popular  Government,"  p.  125. 

'  "Growth  of  the  English  Constitution,"  pp.  56,  57. 

*  Compare  Lowell,  "  Government  of  England,"  vol.  I,  p.  9. 


WRITTEN   AND   UNWRITTEN   CONSTITUTIONS         391 

It  has  been  suggested  that  a  more  scientific  and  useful  a  sug- 
classification  would  be  that  of  flexible  and  rigid  constitu-  cialsffi- 
tions,  the  test  being  the  relation  which  the  constitution  cation: 
bears  to  the  ordinary  laws,  rather  than  its  source  or  mode  and  Rigid 
of  enactment.  Those  which  possess  no  higher  legal  au- 
thority than  the  ordinary  laws  and  which  may  be  altered 
in  the  same  way  as  other  laws,  whether  they  are  embodied 
in  a  single  document  or  consist  largely  of  conventions, 
should  then  be  classified  as  flexible,  movable,  or  elastic 
constitutions;  while  those  which  emanate  from  a  different 
source,  which  legally  stand  over  and  above  ordinary  laws, 
and  which  are  repealed  or  amended  by  different  processes 
should  be  classed  as  rigid,  stationary,  or  inelastic  consti- 
tutions. The  former,  though  they  may  be  written,  possess 
elasticity  and  may  be  altered  with  the  same  ease  and  facil- 
ity as  other  laws;  the  latter  cannot  be  thus  altered,  because 
their  lines  are  hard  and  fixed.  In  the  first  class  would 
fall  the  constitutions  of  Great  Britain,  Hungary,  Italy,  and 
possibly  those  of  Prussia  and  Spain,  though  all  except  the 
first  mentioned  are  usually  classed  as  written  instruments. 
In  the  second  class  would  fall  probably  all  the  other  so- 
called  written  constitutions  of  the  world. ^ 

Sir  Henry  Maine  classified  constitutions,   first,  as    his-  Historical 
torical  or  evolutionary,  that  is,  those  which  have  developed  a^riori 
through  the  accumulation  of  experience;    and,   second,  as  Consti- 
a  priori,   or   those   "founded   on  speculative   assumptions 
remote  from  experience."  ^     The  constitution  of  Great  Brit- 
ain is,  of  course,  the  best  example  of  the  former,  while  the 

'  Bryce  suggests  this  classification  as  preferable  to  the  older  classification  of  con- 
stitutions as  written  and  unwritten.  See  his  Essay  on  "  Flexible  and  Rigid  Constitu- 
tions," p.  II.  It  is  worth  noting,  however,  that  the  distinction  between  flexible  and 
rigid  constitutions  is  not  sharp  or  clear,  hardly  more  so  than  that  between  written 
and  unwritten  ones.  The  German  and  Austrian  constitutions,  for  example,  are 
probably  as  flexible  as  that  of  Great  Britain,  yet  are  classed  as  rigid  because  the 
procedure  of  amendment  in  each  case  is  slightly  different  from  that  of  ordinary 
legislation. 

^  "Popular  Government,"  p.  172. 


392  THE   CONSTITUTION   OF   THE   STATE 

eighteenth  century  constitutions  of  France  were  typical 
illustrations  of  the  latter  type.  Resembling  somewhat  the 
latter  class  are  those  denominated  by  Judge  Jameson  as 
"ideal"  constitutions,  or  those  "framed  in  the  closets 
according  to  abstract  ideas  of  moral  perfection  for  imaginary 
commonwealths."  ^  Such  were  the  constitutions  proposed 
by  Plato,  Sir  Thomas  More,  John  Locke,  Lord  Bacon,  and 
Thomas  Harrington. 

V.     MERITS  AND  DEMERITS   OF    EACH  TYPE 

Advan-  Each  of  the  two  types  of  constitution  described  above 

Rfgid°  has  its  elements  of  strength  and  of  weakness.  In  favor  of 
Consti-  the  enacted  or  written  constitution  are  the  advantages  of 
certamty,  denniteness,  and  stability.  Its  provisions  being 
embodied  in  an  instrument  prepared  ordinarily  with  great 
care  and  deliberation,  the  likelihood  of  uncertainty  as  to 
its  meaning  is  obviously  less  than  where  its  prescriptions 
consist  of  customs  and  usages.  Such  constitutions  cannot 
be  bent  and  twisted  by  the  courts  to  mean  what  the  de- 
mands of  the  moment  may  require,  and  hence  the  protection 
they  afford  and  the  rights  they  guarantee  are  apt  to  be  more 
permanent  and  free  from  frequent  and  hasty  change. 
The  process  of  alteration  being  usually  more  difficult  than 
is  the  case  with  ordinary  laws,  they  are  more  stable  and 
steady  and  free  from  the  dangers  of  temporary  popular 
passion.  But  the  latter  advantage  often  proves  an  ele- 
ment of  weakness.  Experience  shows  that  the  difficulty 
of  amending  rigid  constitutions  has  often  prevented  the 
introduction  of  needed  changes  and  thereby  interfered 
with  the  healthful  growth  and  progress  of  the  state.  Thus 
the  temptation  to  violate  such  a  constitution  when  it  is 
outgrown  and  no  longer  suitable  to  existing  conditions  is 
powerfully    accentuated.      If,    on    the  contrary,   too  easy 

'"Constitutional  Conventions,"  p.  67.     See  also  Wood," Government  of  the 
State,"  chs.  5-7,  for  a  discussion  of  constitutions  as  constrictive  and  restrictive. 


MERITS   AND    DEMERITS   OF   EACH   TYPE  393 

facility  for  producing  amendments  is  provided,  there    is  Disad- 
danger  that  constitutional  changes  may  be  made  objects  ^^*^ses 
of  party   struggle  for   party  purposes,  and   changes  will 
be   forced  into   the  written  instrument  before   they  have 
wrought  themselves  into  the  constitution  of  the  nation/ 

In  favor  of  the  second  group,  that  is,  flexible  constitutions,  Advan- 
are  the  elements  of  elasticity  and  adaptability.  Being  al-  piexiwie 
terable  with  the  same  ease  and  facility  with  which  ordinary  Consti- 
laws  are  changed,  they  are  capable  of  being  modified  so  as 
to  make  possible  the  adjustment  of  the  constitution  to  new 
and  changing  conditions  of  the  society.  They  insure  a 
means  of  legal  and  orderly  growth  and  development  and 
are  particularly  adapted  to  the  needs  of  a  progressive  state. 
This  facility  of  alteration  not  only  removes  the  temptation 
to  disregard  the  constitution,  but  also  affords  a  legal  means 
of  satisfying  popular  passion  and  of  minimizing  or  prevent- 
ing revolutions  by  meeting  them  halfway.  In  the  life  of 
every  people  there  are  crises  when  inelasticity  becomes  a 
danger  —  when  the  constitution  must  either  be  altered  or 
violated.  A  flexible  constitution  is  capable  of  being  twisted 
to  meet  great  emergencies  where  a  rigid  constitution  would 
break  under  such  circumstances.  As  Bryce  has  aptly 
remarked,  "they  can  be  stretched  or  bent  so  as  to  meet 
emergencies  without  breaking  their  framework;  and  when 
the  emergency  has  passed,  they  slip  back  into  their  old  form 
like  a  tree  whose  outer  branches  have  been  pulled  aside  to 
let  a  vehicle  pass."^  Such  a  constitution  also  recovers 
from  shocks  without  injury  where  a  written  constitution 
would  be  injured  past  mending.  No  constitution  which  has 
not  evolved  from  the  history  and  experience  of  the  people 
and  been  molded  by  the  conventions  of  the  national  life 
can  be  completely  adapted  to  the  needs  and   thoughts  of 

'  On  this  point  see  Jameson,  "Constitutional  Conventions,"  sec.  78.  On  the 
advantages  of  written  constitutions,  see  also  Lieber,  "Political  Ethics,"  vol.  I, 
PP- 338-339- 

"  Essay  on  "Flexible  and  Rigid  Constitutions,"  p.  22. 


394  THE   CONSTITUTION   OF   THE   STATE 

the  people.  Judge  Cooley  has  well  said  that  "of  all 
the  constitutions  which  may  come  into  existence  for  the 
government  of  the  people,  the  most  excellent  is  obviously 
that  which  is  the  natural  outgrowth  of  the  national  life, 
and  which,  having  grown  and  expanded  as  the  nation  has 
matured,  is  likely  at  any  particular  time  to  express  the 
prevailing  sentiment  regarding  government  and  the  ac- 
cepted principles  of  civil  and  political  liberty."^  And  the 
least  valuable,  he  adds,  is  that  which  turns  its  back  upon 
the  national  experience,  dissevers  the  national  future  from 
the  past,  and  lays  the  framework  of  the  government  in  ideal 
perfection. 

One  of  the  weaknesses  of  a  written  constitution  is  that 
it  too  often  represents  an  attempt  to  compress  into  a 
single  document  the  principles  of  the  political  life  and 
growth  of  the  nation  for  an  indefinite  period  of  time. 
It  is  like  an  attempt  to  fit  a  garment  to  an  individual  with- 
out taking  into  consideration  his  future  growth  and  changes 
in  size.  Most  written  constitutions  in  the  past  have  been 
framed  without  regard  to  one  of  the  most  important  prin- 
ciples in  the  life  of  the  state,  namely,  that  of  growth  and 
expansion.  Gladstone  once  observed  that  no  greater  ca- 
lamity could  befall  a  people  than  to  break  utterly  with 
their  past.  It  was  in  this  respect  that  the  eighteenth 
century  French  constitutions  proved  unsuccessful.  They 
were  framed  as  if  they  were  the  starting  point  in  the 
life  of  the  state  instead  of  a  mere  step,  and  as  if  they 
could  be  fitted  to  the  nation  as  a  strait-jacket  to  an  indi- 
vidual. No  historical  constitution,  says  Maine,  ever 
suffered  their  "ludicrous  fate."^  A  state  with  such  a 
constitution,  observes  this  noted  scholar,  "is  at  best  in  the 
disagreeable  position  of  a  British  traveler  whom  a  hos- 
pitable Chinese  entertainer  has  constrained  to  eat  a  dinner 
with  chopsticks." 

'  "The  Comparative  Merits  of  Written  and  Prescriptive  Constitutions,"  "Har- 
vard Law  Review,"  vol.  II,  p.  356.  *  "Popular  Government,"  p    175. 


MERITS   AND   DEMERITS   OF   EACH   TYPE  395 

But  flexible  constitutions,  like  those  of  the  rigid  type,  The 
have  their  elements  of  weakness.  They  are  said  to  be  ^g^g^'of 
unstable  and  with  no  guarantee  of  solidity  and  perma-  Unwritten 
nence.  They  are,  says  Bryce,  in  a  state  of  perpetual  flux,  tutions 
like  the  river  of  Heraclitus  into  which  a  man  cannot  step 
twice.  They  can  be  altered  to  meet  the  temporary  fancies 
of  the  moment  as  an  ordinary  statute  may,  for  they  have 
no  higher  legal  authority  than  other  laws  and  are  changed 
in  no  different  manner.  They  have  also  been  criticised  as 
"the  playthings  of  judicial  tribunals"  because  in  the  "vast 
storehouse  of  literary  matter  out  of  which  their  provisions 
are  to  be  gathered  it  is  easy  to  find  or  not  to  find  that  which 
one  will."  ^  It  is  said  also  that  they  are  unsuited  to  democ- 
racies, but  have  an  affinity  for  aristocratic  societies.  The 
masses  in  a  democracy  are  suspicious,  if  not  hostile,  to 
constitutional  prescriptions  which  have  not  been  formally 
enacted  but  which  rest  mainly  upon  custom  and  usage. 
There  is  a  popular  belief  that  unwritten  constitutions  allow 
a  wider  discretion  to  public  officers  than  do  those  of  the 
written  type.  The  masses  like,  says  Bryce,  something 
plain,  simple,  and  direct,  and  entertain  a  suspicion  of  the 
arcana  imperii  of  which  written  constitutions  are  full.^ 

Judge  Jameson,  a  high  authority  on  the  subject  of  consti- 
tutions, thus  describes  the  relative  merits  of  the  two  types 
which  we  have  considered:  "Considering  the  excellencies 
and  defects  of  the  two  varieties  of  constitutions,  it  is  not 
easy  to  strike  a  balance  between  them.  For  a  community 
whose  political  training  has  been  carried  to  a  high  degree  of 
perfection,  in  my  view,  an  unwritten  constitution  would, 

*  Jameson,  "Constitutional  Conventions,"  sec.  77. 

^"Constitutions,"  p.  31.  Bryce  maintains  that  what  he  denominates  as 
"flexible  constitutions"  are  workable  only  under  three  conditions:  first,  su- 
premacy must  remain  in  the  hands  of  a  politically  educated  and  politically  upright 
minority;  second,  the  bulk  of  the  people  must  be  continuously  and  not  fitfully 
interested  in  and  familiar  with  politics;  and  third,  though  legally  supreme,  they 
must  remain  content,  while  prescribing  certain  general  principles,  to  let  the  trained 
minority  manage  the  details  of  the  business  of  government.     Ibid.,  p.  39. 


30 


THE   CONSTITUTION   OF   THE    STATE 


Spread  of 
"Written 
Consti- 
tutions 


on  the  whole,  be  preferable.  In  that  training  two  ele- 
ments would  be  of  vital  consequence  to  the  safety  of  the 
system:  first,  an  accurate  understanding  of  their  political 
rights  and  duties,  general  among  the  citizens;  second, 
sleepless  vigilance  to  detect  violations  of  the  constitution, 
and  the  utmost  promptness  and  energy  to  resist  and  punish 
them.  Without  either  of  these  elements,  the  usurpations 
of  public  functionaries  must  bring  the  system  to  speedy 
ruin.  But  for  a  community  whose  training  has  been  im- 
perfect or  which  is  subject  to  fits  of  political  apathy  alternat- 
ing with  those  of  intense  zeal  for  reform,  a  written  constitu- 
tion is  doubtless  the  better  one.  While  less  flexible  to  the 
pressure  of  the  national  will,  and  therefore  liable  in  many  of 
its  provisions  to  become  obsolete  and  oppressive,  it  is  a 
formidable  barrier  against  usurpation.  Its  provisions  are 
so  plain  that  he  who  transgresses  them  must  generally  do 
so  intentionally,  and  that  fact  must  be  so  apparent  that 
usurpation  would  in  most  cases  not  be  ventured  upon,  as 
likely  to  arouse  a  dangerous  opposition.  The  superiority 
of  such  a  constitution  in  the  circumstances  supposed  fol- 
lows from  the  fact  that  immobility,  with  its  train  of 
possible  evils,  is  less  dangerous  than  movement  that  is 
ill-judged  or  unconstitutional."^ 

Whatever  may  be  the  merits  and  demerits  of  written  and 
unwritten  constitutions,  it  is  clear  that  the  popular  prefer- 
ence is  for  the  former.  Strictly  speaking,  the  British  consti- 
tution is  the  only  remaining  example  of  the  latter  class. 
One  after  another  of  the  states  of  Europe  have  followed 
America  and  adopted  the  written  type,  while  Japan,  Aus- 
tralia, Persia,  Liberia,  South  Africa,  and  other  countries 
outside  of  Europe  and  America  have  done  likewise;  and 
no  state  which  has  once  tried  the  written  constitution  has 
ever  returned  to  the  unwritten  type. 


'  "Constitutional  Conventions,"  sec.  78. 


ESSENTIALS   OF   A   WRITTEN   CONSTITUTION         397 


VI.     ESSENTIALS   OF  A   WRITTEN   CONSTITUTION 

In  its  structure  and  content  a  written  constitution  differs  constitu- 
in  important  particulars  from  a  statute.  It  expresses  the  sta^utes^ 
highest  will  of  the  sovereign  and  is  or  should  be  made  up  of  Compared 
very  general  prescriptions  dealing  with  such  matters  as  the 
structural  organization  of  the  government,  the  distribution 
of  its  powers  among  different  organs,  the  mode  and  princi- 
ples of  its  operation,  the  limitations  upon  its  authority,  the 
apparatus  of  checks  and  balances  and  the  process  by  which 
the  constitution  itself  may  be  altered.  It  is  sometimes 
called  the  fundamental  or  organic  law  because  it  deals,  or  is 
supposed  to  deal,  only  with  matters  of  a  permanent  and 
general  character.^  It  is  also  frequently  spoken  of  as  the 
supreme  or  paramount  law  because  it  usually,  though  not 
always,  possesses  a  higher  legal  authority  and  overrides  all 
conflicting  provisions  of  statute  law.  Statutory  law  is 
of  secondary  rather  than  of  primary  importance  and  deals 
with  matters  which  have  more  of  a  temporary  than  a 
permanent  character.  A  typical  written  constitution  con- 
tains three  sets  of  provisions:  first,  a  series  of  prescriptions 
setting  forth  the  fundamental,  civil,  and  political  rights  of 
the  citizens,  and  imposing  certain  limitations  on  the  power 
of  the  government  as  a  means  of  securing  the  enjoyment  of 
those  rights;  second,  a  series  of  provisions  outlining  the 
organization  of  the  government,  enumerating  its  powers, 
laying  down  certain  rules  relative  to  its  administration 
and  defining  the  electorate;  and,  third,  a  provision  or  pro- 
visions pointing  out  the  mode  of  procedure  in  accordance 
with  which  formal  changes  in  the  fundamental  law  may  be 

^  "  A  written  constitution,"  observes  Borgeaud,  "  is  essentially  a  law  of  political 
protection,  a  law  of  guarantees,  guaranteeing  the  people  against  the  government  and 
the  minority  against  the  majority.  It  declares  the  rights  of  the  citizens,  determines 
the  organization  of  different  branches  of  government  and  their  relations  to  each 
other,  and  in  many  cases  makes  certain  and  special  provisions  rendered  necessary  by 
peculiar  political  conditions."  "Adoption  and  Amendment  of  Constitutions," 
p.  38. 


398  TKE   CONSTITUTION   OF   THE    STATE 

Essential  brought  about/  The  first  group  of  provisions  collectively 
Provisions  j^^yg  been  called  by  one  writer  the  constitution  of  liberty  ; 
the  second,  the  constitution  of  government ;  and  the 
third,  the  constitution  of  sovereignty?  The  first  group  is 
Bills  of  commonly  styled  in  republican  states  a  "bill  of  rights"  or 
^^^*^  "declaration  of  rights."  The  people  of  the  United  States 
have  always  attached  great  importance  to  these  declara- 
tions and  have  considered  them  a  necessary  part  of  their 
constitutions.^  Since  1780  every  constitution  adopted  in 
the  United  States,  with  four  exceptions,  has  given  a  promi- 
nent place  to  such  declarations.^  In  France,  likewise,  for  a 
time  after  the  Revolution,  declarations  of  principles  were 
considered  a  most  essential  part  of  their  instruments  of 
government.  The  constitutions  of  1791,  1793,  1795,  ^^d 
to  a  less  extent  that  of  1848,  contained  not  only  elaborate 
declarations  of  the  rights  of  the  individual,  but  also  numer- 
ous philosophical  enunciations  of  the  political  doctrines 
and  theories  of  the  time.^      The  American  declarations  of 

^  Compare  Moore,  "Commonwealth  of  Australia,"  p.  75. 

^  Burgess,  "Political  Science  and  Constitutional  Law,"  vol.  I,  p.  137. 

'  The  absence  of  such  a  group  of  provisions  in  the  national  constitution  formed, 
as  is  well  known,  one  of  the  chief  objections  to  the  ratification  of  that  instru- 
ment when  it  was  submitted  to  the  people  of  the  states,  though  inasmuch  as  the 
national  government  is  one  of  specifically  enumerated  powers,  it  would  seem  that 
the  objection  was  without  foundation.  The  first  ten  amendments  adopted  in 
1 791  removed  the  cause  of  the  objection. 

*  The  exceptions  were  the  constitutions  of  Louisiana,  1812,  1845,  1852,  and 
1864,  though  in  each  there  were  a  few  scattering  provisions  in  the  nature  of 
declarations  relating  to  the  rights  of  the  individual.  These  declarations  were 
originally  intended  to  protect  the  people  against  arbitrary  executive  power,  and 
since  there  is  no  longer  any  danger  from  this  quarter,  it  has  seemed  strange  to 
some  foreign  writers  that  they  should  continue  to  be  repeated  and  multiplied  in  our 
constitutions.  To  such  persons  the  reason  appears  to  be  simply  the  fondness  of 
Americans  for  enumerating  the  maxims  of  political  freedom  and  the  principles  of 
government.  But  if  the  danger  from  executive  aggression  has  disappeared,  that 
from  legislative  interference  has  greatly  increased,  and  it  is  largely  against  this 
danger  that  the  modern  declarations  are  directed. 

'  For  the  texts  of  these  declarations  see  Anderson's  "Constitutions  and  Docu- 
ments of  France,"  pp.  58,  170,  212.  The  French  constitutions  of  1799,  1804,  1814, 
1820,  and  1852  contained  no  declarations  in  favor  of  the  rights  of  man,  nor  does 
the  present  constitution  of  the  French  Republic. 


ESSENTIALS   OF   A   WRITTEN   CONSTITUTION         399 

rights,  says  Bryce,  are  historically  the  most  Interesting 
part  of  the  constitutions,  being  as  they  are  "the  legitimate 
child  and  representative  of  Magna  Charta  and  the  English 
Bill  of  Rights."^ 

The  second  group  of  provisions,  as  has  been  said,  relate  provisions 
to  the  organization  of  the  government  in  its  widest  sense,  !^^^^^  *° 
including  the  distribution  of  powers  among  the  several  ization  of 
departments,   the  organization  of  the  particular  agencies  ermnent 
through  which   the  state  manifests  itself,   the  extent  and 
duration  of  their  authority,  the  modes  of  appointment  or 
election  of  public  functionaries,    and    the   constitution  of 
the  electorate.     In  some  constitutions  the   provisions  of 
this  character  are   few   in   number   and   very   general   In 
character.      The    "constitutional"    laws    of    France,    for 
example,    contain    no    provisions    governing    the    compo- 
sition,  mode  of  election,  tenure,  organization,  or  powers 
of  the  Chamber  of  Deputies,  except  the  solitary  provision 
that  the  Chamber  shall  be  chosen  by  an  electorate  con- 
stituted on  the  basis  of  universal  suffrage. 

The  constitution  of  the  United  States  is  in  respect  to 
its  content  and  scope  the  model  of  written  constitutions. 
Its  provisions  in  regard  to  the  frame  of  government  are 
general  in  character,  yet  sufficiently  detailed  to  embrace 
those  matters  which  may  be  considered  as  essential  and  fun- 
damental. It  provides  for  the  distribution  of  the  powers 
of  government  between  the  legislative,  executive,  and  judi- 
cial departments  and  the  organization  in  a  general  way  of 
each  of  the  departments;  it  gives  a  brief  and  logical  state- 
ment of  their  jurisdiction  and  powers;  and  a  list  of  prohi- 
bitions upon  both  the  national  and  state  governments.  It 
contains  remarkably  few  miscellaneous  provisions.  There 
is  nothing,  or  very  little,  relating  to  trade.  Industry,  banks, 
and  other  corporations,  railroads,  schools,  or  the  army  or 

*  "The  American  Commonwealth,"  ch.  36.  For  further  discussion  of  this  sub- 
ject see  Sherger,  "The  Evolution  of  Modern  Liberty,"  pts.  III-IV,  and  Jellinek, 
"  Declaration  of  the  Rights  of  Man  and  the  Citizen  "  (Eng.  trans.). 


400  THE   CONSTITUTION    OF   THE   STATE 

the  navy.  Altogether  it  is  a  model  of  brevity,  of  logical 
and  scientific  arrangement,  and  of  conciseness  of  state- 
ment; and  it  is  worth  noting  that  the  language  in  which 
it  is  cast  is  remarkably  free  from  redundant  and  ambigu- 
ous phrases.  It  deals  only  with  matters  which  are  funda- 
mental, leaving  those  of  a  temporary  or  secondary  interest 
to  be  regulated  by  statute.  It  is  in  truth  the  organic  or 
fundamental  law  of  the  land. 
The  But  it  is  the  constitutions  of  the  individual  states  of 

stTt^e  Con-  ^'^^  American  federal  union  that  violate  most  the  canons 
stitutions  laid  dowu  above  in  regard  to  the  proper  conception  of  the 
content  and  scope  of  the  fundamental  law.  The  first  of 
these  instruments  of  government,  notably  those  adopted 
before  the  close  of  the  eighteenth  century,  were  remark- 
ably brief  and  general  in  character.  But  those  of  each 
generation  have  grown  in  volume  until  some  of  those  more 
recently  adopted  contain  not  only  the  fundamental  public 
law,  but  a  great  deal  that  is  not  fundamental  as  well  as  a 
considerable  amount  of  parliamentary  law  and  ordinar^'^ 
private  law.^  Recently  there  has  been  a  marked  dis- 
position to  set  forth  by  way  of  enumeration  the  powers 
which  may  be  exercised  by  the  legislature  and  to  describe 
the  manner  under  which  those  powers  shall  be  exercised; 

'  The  Virginia  constitution,  for  example,  has  grown  from  a  document  of  a  few 
pages  to  one  of  seventy-five ;  from  an  instrument  of  about  fifteen  hundred  words  to 
one  of  more  than  thirty  thousand.  The  present  constitution  of  Alabama  contains 
about  thirty-three  thousand  words;  that  of  Louisiana,  about  forty-five  thousand; 
that  of  Oklahoma,  about  fifty  thousand.  The  Virginia  constitution  contains  a  lengthy 
article  on  the  organization  of  counties ;  one  on  the  government  of  cities,  constituting 
a  code  almost  as  elaborate  as  a  municipal  corporations  act ;  one  on  agriculture  and 
immigration;  one  on  corporations,  containing  fourteen  sections;  one  on  taxation 
and  finance;  etc.  The  constitution  of  Oklahoma  contains  an  article  of  seven 
sections  on  federal  relations,  one  of  which  deals  with  the  liquor  traffic;  elaborate 
provisions  regarding  the  referendum  and  the  initiative;  a  section  describing  the 
seal  of  the  state;  a  detailed  enumeration  of  those  who  are  permitted  to  accept  rail- 
road passes;  an  article  on  insurance;  one  on  manufactures  and  commerce;  and 
one  on  alien  and  corporate  ownership  of  lands.  It  enumerates  the  powers  of  the 
legislature  with  so  much  detail  that  one  almost  wonders  whether  the  legislature  is 
not  an  authority  of  delegated  rather  than  of  residuary  powers. 


ESSENTIALS   OF   A   WRITTEN   CONSTITUTION  401 

to  multiply  the  prohibitions  on  the  powers  of  the  legis- 
lature; and  to  particularize  with  detail  regarding  the  du- 
ties of  public  officers. 

The  result  of  all  this  has  been  to  change  fundamentally  Changed 
the  character  of  the  American  state  constitutions.  From  of^^**^*" 
instruments  of  fundamental  public  law  they  have  become  state  Con- 
largely  codes  of  ordinary  statute  law.  The  reason  is  two- 
fold :  In  the  first  place,  the  change  is  due  to  the  growth  of  a 
strong  popular  distrust  of  the  legislature  on  account  of  fre- 
quent abuses  of  its  authority  in  the  past.  The  remedy  for 
this  has  been  sought  in  the  imposition  of  constitutional 
restrictions  on  its  power  and  the  regulation  through  consti- 
tutional provisions  of  many  matters  which  have  hitherto 
been  left  to  legislative  control.  In  the  second  place,  the 
rapidly  changing  economic  and  social  conditions  of  the 
present  day  have  produced  a  very  complex  society,  giving 
rise  to  many  new  subjects,  requiring  constitutional  regu- 
lation, that  were  unknown  a  hundred  years  ago.  The 
growth  of  great  cities,  with  the  complex  political,  social, 
and  economic  problems  to  which  urban  life  has  given  rise; 
the  conditions  of  the  modern  industrial  system;  the  growth 
of  industrial  combinations  and  great  aggregations  of  cap- 
ital; the  development  of  new  agencies  of  transportation 
and  commerce,  especially  the  railway  and  the  telegraph, — 
have  all  given  rise  to  conditions  and  problems  of  such  deep 
and  general  interest  as  to  create  a  demand  for  their  regu- 
lation by  constitutional  provision  rather  than  by  ordinary 
statutory  legislation.  Moreover,  the  proper  solution  of 
the  problems  arising  from  the  complexity  of  modern  so- 
ciety requires  more  wisdom  and  knowledge  than  is  usually 
found  in  legislative  bodies,  whose  members  are  sometimes 
not  only  incompetent,  but  venal.  The  demand,  therefore, 
for  legislation  through  a  constitutional  convention  is,  as 
has  been  said,  really  a  demand  for  legislation  of  a  higher 
grade.^     To  the  legislature,  in   consequence,  is  left  little 

'  Compare  Dealey,  "Our  State  Constitutions,"  p.  i. 
POL.  SCI.  —  26 


402  THE    CONSTITUTION    OF   THE   STATE 

more  than  the  power  of  filling  up  the  details  of  the  con- 
stitution and  of  regulating  matters  of  minor  importance. 
But  the  result  has  been  to  destroy  to  a  large  extent  the 
distinction  between  the  constitution  and  ordinary  statutory 
legislation. 

VII.    DEVELOPMENT   AND   EXPANSION   OF  THE 
CONSTITUTION 

It  is  an  old  saying,  attributed  both  to  Sir  James  Mcin- 
tosh and  Sir  Henry  Maine,  that  constitutions  grow,  in- 
stead of  being  made.  Whatever  may  be  the  amount  of 
truth  contained  in  the  saying,  it  is  undeniably  true  that 
no  existing  constitution  has  reached  its  final  form  and 
become  as  it  were  a  dead  or  fixed  thing  incapable  of  further 
development.  Time  and  habit,  said  President  Washing- 
ton, in  his  farewell  address,  are  at  least  as  necessary  to  fix 
the  true  character  of  governments  as  of  other  human  in- 
stitutions. "Constitutions  must  grow,"  observed  Lord 
Brougham,  "if  they  are  of  any  value;  they  have  roots, 
they  ripen,  they  endure."  "Those  that  are  fashioned," 
he  continued,  "resemble  painted  sticks,  planted  in  the 
ground,  as  I  have  seen  in  other  countries  what  are  called 
trees  of  liberty.  They  strike  no  root,  bear  no  fruit,  swiftly 
decay,  and  ere  long  perish."  ^ 
How  Con-  Written  constitutions  grow  in  three  ways :  by  usage,  by 
Grow°°^  judicial  interpretation,  and  by  formal  amendment.  The 
part  played  by  custom  and  usage  in  the  development  of  a 
constitution  depends  upon  a  variety  of  circumstances.  It 
is  more  potent  in  the  case  of  old  than  with  new  constitu- 
tions. It  also  plays  a  more  important  role  in  old  and  well- 
settled  societies,  where  the  inhabitants  have  greater  ven- 
eration for  the  past  and  a  higher  regard  for  precedent 
than  those  of  newer  societies  have.^  ' 

'  "The  British  Constitution,"  Works,  vol.  XI,  p.  xxi. 
*  Compare  Bryce,  "American  Commonwealth,"  ch.  32. 


DEVELOPMENT  OF   THE   CONSTITUTION  403 

In  the  newer  states  of  America,  where  constitutions  are 
often  revised  or  made  over  entirely  at  least  once  in  every 
generation,  development  by  usage  is  inconsiderable.  The 
constitution  of  the  United  States,  however,  the  oldest 
existing  American  constitution  except  that  of  Massachu- 
setts, has  developed  and  expanded  in  many  directions 
through  the  operation  of  custom  and  usage.  Many  ex- 
amples might  be  given  if  it  were  necessary.  In  all  states 
the  laying  down  of  new  rules  and  the  inauguration  of  new 
practices  tend  to  create  a,  body  of  customary  law  which 
supplements  and  often  modifies  to  some  extent  the  actual 
working  of  the  law  as  embodied  in  the  written  constitu- 
tion. A  constitution  so  free  of  detail  and  so  concise  of 
statement  as  that  of  the  United  States  must  necessarily 
be  supplemented  by  legislation,  judicial  interpretation, 
or  usage.  Without  understandings  and  conventions  it 
would  in  fact  be  unworkable. 

The  development  of  a  written  constitution  by  judicial  Expan- 
interpretation  necessarily  results  from  the  ambiguities  of  juSdi 
language  and  the  deficiencies  of  expression  which  abound  interpre- 
in  the  most  carefully  framed  instrument,  from  the  appear- 
ance of  new  circumstances  and  conditions,  and  finally  from 
the  inevitable  difference  of  opinion  which  arises  concerning 
the  meaning  of  its  provisions.     Under  such  circumstances 
nothing  is  more  natural  than  for  the  judiciary  to  assume 
the  responsibility  of  ascertaining  not  only  the  true  meaning 
of  that  which  is  expressed  in  the  constitution  but  also  that 
which  the  framers  intended  to  express;  and  to  draw  conclu- 
sions respecting  its  applicability  to  subjects  which  lie  beyond 
the  direct  expressions  of  the  text  and  which  the  framers 
would  have  dealt  with  had  they  been  gifted  with  the  power 
of  foresight.^     Expansion  by  interpretation   is  especially 

'The  former  act  is  known  as  "interpretation,"  the  latter  as  "construction." 
See  Cooley,  "Constitutional  Limitations,"  ch.  4;  Bouvier's  "Law  Dictionary,"  sub 
verba  "Interpretation"  and  "Construction";  and  Lieber  "Practical  and  Legal 
Hermeneutics,"  ch.  III. 


404  THE   CONSTITUTION   OF   THE   STATE 

potent  in  countries  like  the  United  States,  where  the  judi- 
ciary plays  an  exceptionally  important  role,  possessing  as 
it  does  not  only  the  power  to  interpret  the  meaning  of  the 
provisions  of  the  constitution,  but  also  to  declare  statutes 
which  are  in  conflict  with  the  supreme  law  to  be  of  no 
force  and  effect.  It  is  almost  a  commonplace  to  say  that 
a  very  large  part  of  the  constitution  of  the  United  States 
consists  of  judicial  addenda.  Almost  every  clause  has 
been  the  subject  of  interpretation  and  construction;  and 
if  we  were  to  strip  it  of  the  meanings  that  have  been  added 
by  the  courts  during  its  existence  of  more  than  a  century, 
we  should  hardly  be  able  to  recognize  it. 
Expan-  The   most   prolific  source   of   constitutional  expansion, 

Form^  particularly  in  republican  states,  is,  of  course,  formal 
Amend-  amendment  of  the  written  instrument  in  accordance  with 
the  method  of  procedure  set  forth  in  the  fundamental  law 
itself  for  making  changes  in  its  provisions.  As  has  been 
said,  provision  for  its  own  alteration  has  come  to  be  re- 
garded as  an  essential  part  of  every  written  constitution. 
Some  of  the  early  American  state  constitutions  (eight  of 
them  altogether  and  all  belonging  to  the  eighteenth  cen- 
tury) contained  no  such  provisions.^  Whether  this  omis- 
sion was  due  to  oversight,  or  failure  to  appreciate  the  ob- 
vious advantages  of  expressly  pointing  out  in  the  constitu- 
tion itself  the  mode  of  procedure  to  be  observed  in  altering 
its  provisions;  or  whether  it  was  due  to  the  prevailing 
opinion,  repeatedly  asserted  in  their  bills  of  rights,  that 
the  people  have  an  inalienable  right  at  all  times  to  amend 
their  constitutions  and  hence  no  necessity  exists  for  limit- 
ing their  right  by  self-imposed  restrictions,  —  there  is  a  dif- 
ference of  opinion.  Whatever  may  have  been  the  reason, 
the  desirability,  not  to  say  necessity,  of  pointing  out  in  the 
constitution  a  method  of  legal  and  orderly  procedure  for 

*  For  a  detailed  consideration  of  the  methods  of  amending  the  American  state 
constitutions,  see  an  article  by  the  writer  entitled  "The  Amendment  of  State  Constitu- 
tions," in  the  "American  Political  Science  Review,"  vol.  I,  no.  2. 


DEVELOPMENT   OF   THE   CONSTITUTION  405 

making  alterations  soon  came  to  be  appreciated ;  and  all 
the  American  state  constitutions  framed  since  the  begin- 
ning of  the  nineteenth  century,  with  three  exceptions,  have 
contained  amending  provisions.*  No  written  constitution 
is  complete  without  such  a  provision.  In  some  respects  it  is 
the  most  important  part  of  the  constitution,  because,  as  has 
been  said,  upon  the  correspondence  of  the  written  constitu- 
tion with  the  real  and  natural  conditions  of  the  state  depends 
the  question  whether  it  shall  develop  with  peaceable  conti- 
nuity or  shall  suffer  alternations  of  stagnation,  retrogression, 
and  revolution.^  John  Stuart  Mill  has  well  observed  that  no 
constitution  can  expect  to  be  permanent  unless  it  guar- 
antees progress  as  well  as  order. ^  Human  societies  grow 
and  develop  with  the  lapse  of  time,  and  unless  provision 
is  made  for  such  constitutional  readjustments  as  their 
internal  development  requires,  they  must  stagnate  or 
retrogress.  In  short,  the  written  law  must  correspond  with 
the  economic,  political,  and  social  conditions  of  society. 
An  unamendable  constitution,  says  Mulford,  is  the  "worst 
tyranny  of  time,  or  rather  the  very  tyranny  of  time.  It 
makes  an  earthly  providence  of  a  convention  which  has 
adjourned  without  day.  It  places  the  scepter  over  a 
free  people  in  the  hands  of  dead  men  and  the  only  office 
left  to  the  people  is  to  build  thrones  out  of  the  stones  of 
their  sepulchres."  *  The  provision  for  amendment  should 
be  neither  so  rigid  as  to  make  needed  changes  practically 
impossible  nor  so  flexible  as  to  encourage  frequent  and 
unnecessary  change  and    thereby  lower  the  authority  of 

'  The  exceptions  were  those  of  Virginia,  of  1830,  1851,  and  1864. 

^  Cf.  Burgess,  "Political  Science  and  Constitutional  Law,"  vol.  I,  p.  137. 

^  "Representative  Government,"  p.  8. 

*  "The  Nation,"  p.  155.  "To  make  amendment  difficult  or  well-nigh  impossi- 
ble," continues  Mulford,  "and  then  to  assume  that  it  shall  be  exclusively  and 
exhaustively  definitive  of  the  action  of  the  people  in  all  events,  involves  the 
denial  of  the  organic  and  moral  being  of  the  people.  ...  It  is  directly  immoral, 
since  in  its  necessary  inference  the  people  no  longer  exists  as  a  power  in  the 
moral  order  which  is  the  life  of  history." 


4o6 


THE   CONSTITUTION   OF   THE   STATE 


The 
Nature 
of  the 
Amend- 
ing Power 


the  constitution  by  reducing  it  practically  to  the  level 
of  an  ordinary  statute.  The  machinery  of  amendment, 
remarks  Judge  Jameson,  should  be  like  a  safety  valve, 
so  devised  as  neither  to  operate  the  machine  with  too  great 
facility  nor  require,  in  order  to  set  it  in  motion,  an  accu- 
mulation of  force  sufficient  to  explode  it.  In  arranging  it, 
due  consideration  should  be  given  on  the  one  hand  to  the 
requisites  of  growth  and  on  the  other  hand  to  those  of  con- 
servatism. "  The  letter  of  the  constitution  must  neither 
be  idolized  as  a  sacred  instrument  with  that  mistaken 
conservatism  which  clings  to  its  own  worn-out  garments 
until  the  body  is  ready  to  perish  from  cold,  nor  yet  ought 
it  to  be  made  a  plaything  of  politicians,  to  be  tampered 
with  and  degraded  to  the  level  of  an  ordinary  statute."  * 


*  "Constitutional  Conventions,"  p.  549. 


CHAPTER  XIII 

THE  DISTRIBUTION  OF  THE  POWERS  OF 
GOVERNMENT 

Suggested  Readings :  Aucoc,  "  Droit  administratif ,"  pt.  I,  bk.  I, 
ch.  i;  Bagehot,  "The  English  Constitution,"  ch.  2;  Berthelemy, 
"Traite  elementaire  de  Droit  administratif,"  pp.  11-32;  also  his 
"Role  du  Pouvoir  executif  dans  les  Republiques  modemes,"  pp.  51- 
57;  Bluntschli,  "Allgemeine  Staatslehre,"  bk.  VII,  chs.  6  and  7; 
BoNDY,  "Separation  of  Governmental  Powers"  in  the  "Columbia 
University  Studies  in  History,  Economics,  and  Public  Law,"  vol.  V, 
chs.  1-7;  Crane  and  Moses,  "Politics,"  ch.  15;  Ducrocq,  "Cours 
de  Droit  administratif,"  vol.  I,  pp.  6-50;  DuGUiT,  "La  Separation 
des  Pouvoirs";  also  his  "Droit  constitutionnel,"  sees.  54  and  55; 
EsMEiN,  "Droit  constitutionnel,"  tit  II,  ch.  3;  "The  Federalist," 
Nos.  47,  48,  49;  GooDNOW,  "Principles  of  Administrative  Law," 
bk.  I,  chs.  1-4;  Jellinek,  "Recht  des  modernen  Staates,"  pp.  591- 
609;  Laveleye,  "Le  Gouvernement  dans  la  Democratie,"  vol.  I, 
bk.  VII,  ch.  i;  Locke,  "Two  Treatises  of  Government,"  sees. 
143-148,  156,  159;  Mill,  "Representative  Government,"  ch.  5; 
Montesquieu,  "Esprit  des  Lois,"  bk.  XI,  ch.  6;  Moreau,  "Precis 
elementaire  de  Droit  constitutionnel,"  pp.  18-26;  Pradier-Fodere, 
"Precis  de  Droit  administratif,"  pt.  I.,  ch.  i;  St.  Girons,  "La 
Separation  des  Pouvoirs, "  bk.  I  ch.  i ;  Schouler,  "  Ideals  of  the 
Republic,"  ch.  9;  Sidgwick  "Elements  of  Politics,"  chs.  22,  24; 
Story,  "Commentaries,"  vol.  I,  bk.  Ill,  ch.  7. 

I.  THE  THEORY  OF  THE  SEPARATION  OF  POWERS 

The  functions  or  activities  of  government  are  custom-  The 
arily  divided  into  three  classes:  those  which  are  legislative  Theory 
in  character,  those  which  are  executive,  and  those  which 
are  judicial.  The  legislative  function  consists  mainly  in 
laying  down  rules  of  conduct  for  those  subject  to  the  juris- 
diction of  the  state;  the  executive  function  consists  mainly, 
though  not  wholly,  in  enforcing  such  of  these  rules  as  are 
in  the  nature  of  commands;  and  the  judicial  function  con- 

407 


Theory 


408        DISTRIBUTION   OF   POWERS   OF   GOVERNMENT 

sists  in  Interpreting  their  meaning  in  order  that  they  may 
be  applied  in  particular  cases. 

Some  writers,  however,  especially  among  the  French, 
recognize  only  two  classes  or  groups  of  governmental 
powers,  namely,  those  which  are  concerned  with  the  formu- 
lation and  expression  of  the  will  of  the  state,  and  those 
which  have  to  do  with  the  execution  of  that  will.  Thus, 
says  Du  Crocq,  an  eminent  writer  on  administrative  law, 
"the  mind  can  conceive  of  but  two  powers:  that  which 
makes  the  law  and  that  which  executes;  there  is  no  place 
for  a  third  power  by  the  side  of  the  other  two."  ^ 
Duality  Thosc  wlio  adopt  this  view  maintain  that  the  judicial 

function  does  not  in  reality  constitute  a  separate  and  dis- 
tinct power,  but  is  rather  a  part  of  the  executive  power,  or 
a  particular  phase  or  incident  of  it,  since  it  is  primarily 
concerned  with  the  application  and  enforcement  of  the  leg- 
islative will.  Thus  writes  Duguit,  another  French  oppo- 
nent of  the  trinity  theory,  "It  necessarily  follows  that  the 
judicial  order  is  not  a  distinct  power,  but  simply  a  depend- 
ency of  the  executive  power,  under  whose  surveillance  it 
ought  to  be  placed ;  ...  it  is  a  mere  agent  of  execution, 
subordinate  to  the  executive  power."  ^  Consequently, 
what  are  popularly  treated  as  three  clearly  differentiated 
sets  of  governmental  functions  are  in  fact  but  two,  namely, 
those  which  are  legislative  and  those  which  are  executive.' 

^  "Traite  de  Droit  administratif,"  vol.  I,  p.  29;  see  also  his  "Cours  de  Droit 
administratif,"  vol.  I,  p.  26. 

^  "  La  Separation  des  Pouvoirs,"  pp.  73-74.  See  also  his  "  Droit  constitutionnel," 
pp.  319,  334,  where  he  declares  that  there  are  but  two  powers  of  government:  la 
puissance  legislative  el  la  puissance  executive.  Duguit  argues  that  if  the  judicial 
power  is  distinct,  autonomous,  and  independent  of  the  executive  power,  the  right  of 
pardon  by  the  executive  is  evidence.  In  short,  the  existence  of  the  right  of 
pardon  in  the  executive  is  a  recognition  of  the  dependence  of  the  judicial  power  upon 
that  of  the  executive. 

^This  is  also  the  view  of  Pradier-Fodere  ("Precis  de  Droit  administratif,"  ch. 
I),  who  asserts  that  "there  can  be  but  two  powers  of  government,  that  which  ad- 
ministers (legislative)  and  that  which  applies  (executive)."  See  also  Rousseau, 
"  Contrat  social,"  bk.  Ill,  ch.  7;  alsoTreitschke  ("Politik,"  vol.  II,  pp.  2-3),  who 


THE   THEORY   OF   THE   SEPARATION    OF   POWERS      409 

Generally  the  advocates  of  the  "duality"  theory  sub-  Separa- 
divide  the  activities  which  have  to  do  with  the  execution  po°°/gi 
of  the  state  will  into  three  classes:  those  which  are  purely  France 
executive  in  character,  or  which  are  limited  to  the  super- 
vision and  direction  of  the  task  of  execution;  those  which 
are  administrative  in  character,  or  which  are  concerned 
rather  with  the  actual  scientific  or  technical  work  in- 
volved in  carrying  on  the  executive  functions  of  govern- 
ment; and  those  which  are  judicial,  or  which  have  to  do 
with  the  interpretation  and  application  of  the  law  to 
concrete  cases/  Finally,  it  should  be  noted  that  while 
most  French  writers  conceive  the  judicial  power  to  be  a 
particular  phase  or  manifestation  of  the  executive  power, 
they  nevertheless  separate  rigidly  the  function  of  admin- 
istration, in  the  executive  sense  of  the  term,  from  judicial 
administration,  or  the  administration  of  justice,  by  taking 
away  from  the  judiciary  practically  all  power  of  control 
over  the  administrative  authorities.  In  other  words,  the 
doctrine  of  the  separation  of  powers,  as  Dicey  remarks,  has 
in  the  mind  of  a  French  statesman  a  meaning  very  dif- 
ferent from  that  attributed  to  it  by  a  statesman  in  England 
or  the  United  States.     In  France  it  means  not  merely  that 

asserts  that  the  "  whole  theory  regarding  the  existence  of  three  state  powers  and 
their  separation  from  each  other  is  a  pure  theoretical  and  fantastical  conception." 
"It  is  better,"  he  adds,  "to  recognize  only  two  such  powers:  Ver/assung,  "which. 
embodies  the  totality  of  activities  which  have  to  do  with  the  expression  of  the  will 
of  the  state;  and  Verwaltung,  which  includes  all  those  concerned  with  the  execution 
of  the  state  will."  Compare  also  Goodnow  ("Politics  and  Administration,"  espe- 
cially chs.  I  and  2),  who  supports  the  French  theory  of  the  duality  of  governmental 
powers.  All  the  powers  of  the  state,  he  observes,  have  to  do  either  with  the  ex- 
pression of  the  will  of  the  state  or  the  execution  of  that  will.  Those  activities  which 
belong  to  the  former  class  may  be  appropriately  comprehended  under  the  name 
"politics,"  while  those  belonging  to  the  second  category  may  be  embraced  under 
the  term  "administration."  "Politics"  and  "administration,"  therefore,  include 
all  the  activities  of  the  state,  whether  we  describe  them  as  legislative,  executive, 
judicial,  administrative,  or  otherwise.  See  also  St.  Girons,  "La  Separation  des 
Pouvoirs,"  pp.  1-3;   also  pp.  135  and  411. 

'  Compare  Goodnow,  "Principles  of  Administrative  Law,"  p.  17;  and  Jellinek, 
"Recht  des  mod.  Staatcs,"  bk.  Ill,  ch.  18,  sec.  2. 


4IO        DISTRIBUTION   OF    POWERS   OF    GOVERNMENT 

the  judges  should  be  independent  as  understood  in  the 
United  States,  but  that  the  government  and  its  agents 
ought  to  be  independent  of,  and  to  a  great  extent  free 
from,  the  jurisdiction  of  the  ordinary  courts.^ 
Criticism  While  the  "duality"  theory  is  accepted  by  most  French 
°i)*uaiity"  writers,  there  are  a  few  of  high  standing  who  reject  it  as 
Theory  unsouud.  Esmciu,  for  example,  asserts  that  the  function 
of  the  judges  in  the  application  of  the  law  is  not  simply  an 
incident  of  execution  and  hence  is  not  subordinate  to  the 
executive  power.  It  is  true,  he  admits,  that  the  function 
of  interpretation  by  the  judiciary  is  preliminary  to  that 
of  execution;  that  is,  the  judges  determine  in  the  first 
place  whether  the  law  is  applicable,  and,  therefore,  whether 
it  ought  or  ought  not  to  be  enforced  in  a  particular  case;  but 
that  does  not  make  it  a  part  of  the  act  of  execution.  If  the 
judicial  power  is  only  an  incident  of  the  executive  power, 
then  the  judges  are  nothing  more  than  the  agents  of  the 
executive  and  render  justice  in  its  name.  Moreover,  since 
the  exercise  of  judicial  power  in  many  cases  has  no  bear- 
ing whatever  on  the  execution  of  the  law,  how  can  it  be  a 
part  or  phase  of  the  executive  power  in  such  cases  ?  In 
the  field  of  non-contentious  jurisdiction,  where  no  con- 
troversies are  involved,  there  is  no  question  of  the  execu- 
tion of  the  law,  and  it  would  manifestly  be  incorrect  to 
speak  of  the  judicial  power  as  having  any  agency  in  the 
function  of  execution.^  But  although  much  may  be  said  in 
favor  of  the  duality  theory,  popular  usage  and  actual  prac- 
tice sanction  the  doctrine  of  the  trinity  of  powers.  In 
every  modern  state,  whatever  the  form  of  its  constitution, 
the  governmental  system  is  in  fact  organized  and  admin- 
istered on  the  principle  that  the  judicial  power  is  not  a 
part  of  the  executive  power,  that  it  is  fundamentally  dif- 
ferent in  character,  and  that  its   exercise   should  be  in- 

'  "  Law  of  the  Constitution,"  p.  i8i. 

-"Droit  constitutionnel,"  pp.  337-351.     For  further  discussion  of  this  question 
see  Berthelemy,  op.  cit.,  pp.  13-14. 


THE   THEORY   OF   THE   SEPARATION   OF   POWERS      411 

trusted  to  separate  and  distinct  organs.  Even  in  absolute 
monarchies  where,  constitutionally,  the  whole  legislative 
and  judicial  power  is  in  the  hands  of  a  single  individual, 
it  is  in  practice  separated  and  exercised  through  agencies 
largely  distinct  and  independent  of  each  other. 

The  idea  of  a  threefold  division  of  governmental  powers  Ancient 
was  recognized  by  Aristotle,  Cicero,  Polybius,  and  other  tion°f°t'he 
ancient  political  writers.^  Aristotle,  for  example,  classi-  Trinity 
fied  the  powers  of  government  as:  first,  the  deliberative, 
or  those  concerned  with  great  questions  of  practical  policy, 
including  decisions  regarding  war  and  peace,  the  negotia- 
tion of  treaties,  the  making  of  laws,  etc;  second,  the  magis- 
terial, or  those  corresponding  roughly  to  the  executive 
functions  of  a  modern  state;  and,  third,  the  judicial  power .^ 
Although  the  ancient  writers  distinguished  between  three 
classes  of  governmental  powers,  corresponding  roughly  to 
the  modern  classification,  yet  in  practice  the  distinction 
was  not  always  observed.  Thus  the  Ecclesia  of  Athens 
passed  the  laws,  executed  many  of  them,  and  exercised 
judicial  functions.  The  Archons,  although  primarily  ad- 
ministrative officials,  possessed  judicial  powers.  The  Ro- 
man Senate  was  both  a  legislative  and  an  administrative 
assembly,  while  the  magistrates  combined  both  admin- 
istrative and  judicial  functions.^  Throughout  the  Middle 
Ages  no  clear  distinction  between  legislative,  executive,  and 
judicial  functions  was  recognized,  though  in  a  rough  way 
the  functions,  especially  of  legislation  and  administration, 

'Compare,  on  this  point,  Bluntschli,  "Allgemeine  Staatslehre,"  bk.  VII,  ch. 6; 
Laveleye,  "Le  Gouvernement  dans  la  Democratic,"  vol.  I,  bk.  VII,  ch.  i;  St. 
Girons,  "La  Separation  des  Pouvoirs,"  pp.  4-29,  where  the  theory  and  practice  are 
reviewed  at  length ;  and  Bondy,  "  The  Separation  of  Governmental  Powers,"  "  Co- 
lumbia University  Studies  in  History,  Economics,  and  Public  Law,"  vol.  V,  p.  144. 

*  "Politics,"  bk.  IV,  ch.  14. 

*  Sidgwick  observes  that  in  the  earliest  times  political  functions  were  distributed 
among  three  differently  constituted  organs:  the  king  or  supreme  chief,  a  coun- 
cil of  subordinate  chiefs  or  elders,  and  the  assembly  of  fully  qualified  citizens. 
"  Development  of  European  Polity,"  p.  43. 


412        DISTRIBUTION   OF   POWERS   OF    GOVERNMENT 

were  separated  as  a  matter  of  convenience.  Generally, 
the  same  magistrates  exercised  both  executive  and  judi- 
cial functions.  Indeed,  the  separation  of  the  judicial 
power  from  the  executive  is  a  comparatively  recent  inno- 
vation, and  when  it  came  it  undoubtedly  marked  an  im- 
portant political  advance.  The  purity  of  justice  and  the 
liberty  of  the  citizens,  observes  Bluntschli,  gained  by  the 
change,  and  government  did  not  lose  its  security.^ 
Develop-  The  distinction  is  so  familiar  to  us,  says  Maine,  that 
the'prin-  ^^  ^^  hard  for  us  to  believe  that  even  the  different  nature 
cipieofthe  of  the  cxccutivc  and  legislative  powers  was  not  recognized 
of  Powers  until  the  fourteenth  century,  when  it  appeared  in  the 
"Defensor  Pacis"  of  Marsiglio  of  Padua  (1377)-^  Bodin, 
in  the  sixteenth  century,  was  the  first  political  writer  to  call 
attention  to  the  danger  of  allowing  the  prince  to  admin- 
ister justice  in  person  and  to  point  out  the  advantage  of 
intrusting  the  judicial  power  to  independent  magistrates. 
"To  be  at  once  legislator  and  judge,"  he  declared,  "is  to 
mingle  together  justice  and  the  prerogative  of  mercy, 
adherence  to  the  law  and  departure  from  it.^  Writers  on 
the  law  of  nature  and  of  nations  had  analyzed  the  nature 
of  the  various  powers  of  government,  but  had  generally  held 
that  in  order  that  the  state  might  be  strong  and  powerful 
it  was  necessary  that  all  powers  should  be  united  in  the 
same  hands  rather  than  distributed  among  coordinate 
and  coequal  authorities.  In  England,  at  the  time  of  the 
Puritan  Revolution,  in  the  middle  of  the  seventeenth  cen- 
tury, the  division  of  governmental  powers  and  their  exercise 
by  separate  and  distinct  organs  became  for  the  first  time  a 
political  doctrine.  Cromwell,  in  the  constitution  of  the 
Protectorate,  went  to  the  length  of  separating  the  execu- 
tive and  legislative  functions,  but  he  did  not  fully  recog- 
nize the  independence  of  the  judiciary.  John  Locke,  the 
political    philosopher  of   the    English    Revolution,  in   his 

'  "  Allgemeine  Staatslehre,"  vol.  I,  bk.  VII,  ch.  7. 

*  "  Popular  Government,"  p.  219.  ^  "  De  la  R^publique,"  bk.  I,  ch.  10. 


THE   THEORY   OF   THE   SEPARATION    OF   POWERS      413 

famous  "Two  Treatises  of  Government,"  declared  that  the 
powers  of  government  naturally  divided  themselves  into 
those  which  were  legislative  in  character,  those  which 
were  executive,  and  those  which  were  federative/  By  the 
latter  functions  he  seems  to  have  meant  what  is  now  un- 
derstood as  the  diplomatic  power. 

The  first  modern  political  writer  to  dwell  at  length  upon  view  of 
the  separation  of  the  powers  of  government  and  to  treat  ^o'^t^s- 
it  as  a  fundamental  principle  of  political  science  was 
Montesquieu,  in  his  famous  work  entitled  "L'Esprit  des 
Lois,"  published  in  1748.  "In  every  government,"  he 
said,  "there  are  three  sorts  of  power":  the  legislative,  the 
executive,  and  the  judiciary.  When  the  legislative  and 
executive  powers  are  united  in  the  same  person,  or  in 
some  body  of  magistrates,  there  can  be  no  liberty.  Again, 
there  is  no  liberty  if  the  judiciary  power  is  not  separated 
from  the  legislative  and  executive  powers.  Were  it 
joined  with  the  legislative  power,  the  life  and  liberty 
of  the  subject  would  be  exposed  to  arbitrary  control;  for 
the  judge  would  then  be  the  legislator.  Were  it  joined 
with  the  executive  power,  the  judge  might  behave  with 
violence  and  oppression.  There  would  be  an  end  of 
everything  were  the  same  man  or  the  same  body,  whether 
of  the  nobles  or  of  the  people,  to  exercise  these  three 
powers,  that  of  enacting  the  laws,  that  of  executing  the 
public  resolutions,  and  that  of  trying  the  causes  of  indi- 
viduals.^ Montesquieu  was  the  first  writer,  therefore, 
to  make  the  theory  of  the  separation  of  powers  a  doc- 
trine of  liberty.  His  views  became  a  part  of  the  political 
philosophy  of  the  French  Revolution  and  were  fully  enun- 
ciated in  the  constitutions  which  were  framed  in  France 
before  the  close  of  the  eighteenth  century.^ 

'  Ch.  XII,  sees.  143,  144,  146  (Morley's  ed.). 
»  "Esprit  des  Lois,"  bk.  XI,  ch.  6. 

^  See,  for   example,  the   constitutions  of   1791    and    179.5.     Article    16  of   the 
Declaration  of  Rights  of  1791  asserts  that  "every  society  in  which  the  separation 


414        DISTRIBUTION   OF   POWERS   OF   GOVERNMENT 


View  of 
Black- 
stone 


Views  of 
the  Found- 
ers of  the 
American 
Republic 


In  England  essentially  the  same  doctrine  as  that  an- 
nounced in  France  by  Montesquieu  was  laid  down  by  Black- 
stone  in  his  "Commentaries  on  the  Laws  of  England."  ^ 
"Whenever,"  said  Blackstone,  "the  right  of  making  and 
enforcing  the  law  is  vested  in  the  same  man  or  the  same 
body  of  men,  there  can  be  no  public  liberty.  The  magis- 
trate may  enact  tyrannical  laws  and  enact  them  in  a  tyran- 
nical manner,  since  he  is  possessed,  in  his  quality  of 
dispenser  of  justice,  with  all  the  power  which  he  as  legis- 
lator thinks  proper  to  give  himself."  "Were  the  judicial 
power  joined  with  the  legislative,"  he  concluded,  "the  life, 
liberty,  and  property  of  the  subject  would  be  in  the  hands 
of  arbitrary  judges  whose  decisions  would  be  regulated  by 
their  opinions  and  not  by  any  fundamental  principles  of 
law;  which,  though  legislators  may  depart  from,  yet 
judges  are  bound  to  observe.  Were  it  joined  with  the  ex- 
ecutive, this  union  might  soon  be  an  overbalance  of  the 
legislative." 

In  America,  at  the  time  of  the  framing  of  the  national 
constitution,  the  influence  of  both  Blackstone  and  Montes- 
quieu was  powerful  and  decisive,  and  their  doctrines  con- 

of  powers  is  not  determined  has  no  constitution."  In  pursuance  of  this  theory  the 
constitution  of  1791  created  a  legislative  assembly  not  subject  to  dissolution  by  the 
executive ;  a  ministry  which  was  excluded  from  seats  in  the  legislature ;  a  king  with 
no  legislative  initiative  and  with  only  a  suspensive  veto ;  and  a  judiciary  elected  by  the 
people.  The  administrative  authorities  were  freed  from  all  control  on  the  part  of  the 
judiciary  and  it  was  declared  that  "every  act  of  the  courts  of  justice  which  purports 
to  oppose  or  arrest  the  administration  shall  be  unconstitutional  and  void. "  In  short, 
the  principle  was  laid  down  that  each  of  the  departments  of  government  was  sover- 
eign and  independent  within  its  domain ;  that  the  legislature  should  exercise  all  of 
the  legislative  power  and  only  that;  that  the  executive  department  should  exercise 
all  the  executive  power  and  no  more ;  etc.  Still,  it  recognized  certain  necessary  ex- 
ceptions, as  where  the  administrative  authorities  were  given  certain  powers  of  a 
judicial  character.  For  the  opinions  of  leading  members  of  the  National  Assembly 
recognizing  the  doctrine  of  the  separation  of  powers,  see  St.  Girons,  "La  Separation 
des  Pouvoirs,"  pp.  xxii-xxiii.  See  also  Bluntschli,  "AUgemeine  Staatslehre,"  bk. 
VII,  ch.  7,  pp.  80-81;  Duguit,  "Droit  constitutionnel,"  p.  323;  and  Rousseau, 
"Contrat  social,"  bk.  Ill,  ch.  i. 
'  Chase's  Edition,  p.  17. 


THE   THEORY   OF   THE   SEPARATION   OF   POWERS      415 

cerning  the  separation  of  powers  became  a  part  of  the 
political  creed  of  the  early  statesmen.  Madison,  in  almost 
the  very  language  of  Montesquieu,  whom  he  pronounced 
"the  oracle  who  is  always  consulted  and  cited  on  this  sub- 
ject," defended  the  doctrine  as  essential  to  the  protection 
of  individual  liberty.  "The  accumulation  of  all  powers, 
legislative,  executive,  and  judicial,  in  the  same  hands,"  he 
said,  "whether  of  one,  a  few,  or  many,  and  whether  heredi- 
tary, self-appointed,  or  elective,  may  justly  be  pro- 
nounced the  very  definition  of  tyranny."  ^  George  Wash- 
ington, John  Adams,  Thomas  Jefferson,  Alexander  Ham- 
ilton, and  later  Kent,  Story,  and  Webster,  all  expressed 
similar  views.^ 

In  the  early  state  constitutions  framed  before  the  close  Early Con- 
of  the  eighteenth  century  the  idea  that  legislative,  execu-  provis*ions 
tive,  and  judicial  functions  must  be  kept  separate,  and  in- 
trusted to  distinct  authorities,  was  expressed  in  no  uncertain 
language;  and  their  governments  were  organized  as  nearly 
in  accordance  with  the  theory  as  considerations  of  expedi- 
ency and  efficiency  permitted.  Thus  the  constitution  of 
Massachusetts  (1780)  declared  that  "in  the  government 
of  this  commonwealth  the  legislative  department  shall 
never  exercise  the  executive  and  judicial  powers  or  either 
of  them;  the  executive  shall  never  exercise  the  legislative 
or  judicial  powers  or  either  of  them;  the  judicial  shall 
never  exercise  the  legislative  and  executive  powers  or  either 

»  "The  Federalist,"  No.  47. 

^  See  Washington's  Farewell  Address;  Hamilton,  in  "The  Federalist"  no.  47; 
Jefferson's  "Notes  on  Virginia";  Kent,  "Commentaries,"  vol.  I,  p.  283;  Story, 
"Commentaries,"  vol.  I,  bk.  Ill,  ch.  8;  Webster's  Works,  vol.  IV,  p.  122.  "It  is  by 
balancing  each  of  these  three  powers  against  the  other  two,"  said  Adams,  "that  the 
efforts  in  human  nature  toward  tyranny  can  alone  be  checked  and  restrained  and  any 
degree  of  freedom  be  preserved."  "  I  agree,"  said  Hamilton,  "  that  there  is  no  liberty 
if  the  power  of  judging  be  not  separate  from  the  legislative  and  executive  powers." 
"  The  separation  of  the  departments,"  said  Webster,  "  so  far  as  practicable,  and  the 
preservation  of  clear  lines  between  them,  is  the  fundamental  idea  in  the  creation  of 
all  our  constitutions,  and  doubtless  the  continuance  of  regulated  liberty  depends  on 
maintaining  these  boundaries." 


41 6        DISTRIBUTION   OF   POWERS   OF    GOVERNMENT 

of  them,  to  the  end  that  it  may  be  a  government  of  laws 
and  not  of  men."     Declarations  similar  in  substance  were 
incorporated   in   most   of    the    other    revolutionary    state 
constitutions  and   in  those  which   followed   the  adoption 
of  the  federal  constitution/     Practically  all  of  the  state 
constitutions  that  have  since  been  framed  contain  "dis- 
tributing   clauses"    expressly    providing    for    a    tripartite 
division    of    governmental    powers    among    separate    and 
distinct   departments   or   organs.     The    few  that  contain 
no  formal  distributing  clauses  nevertheless  vest  the  leg- 
islative,   executive,    and    judicial    functions    in    separate 
organs,  so  that  whether  the  theory  is  formally  expressed 
or  not,  the  government  in  every  case  is  in  fact  organized  in 
accordance  with  the  principle  of  separation. 
Doctrine         The  present  conception  as  well  as  the  current  practice  in 
United       America  has  lately  been  expressed  by  the  Supreme  Court 
states        of  the  United  States  in  the  following  language:    "It  is  be- 
^upreme     jj^^^^  ^^  ^^  ^^^  ^^  ^^^  chief  merits  of  the  American  system 

of  written  constitutional  law  that  all  powers  intrusted  to 
the  government,  whether  state  or  national,  are  divided  into 
three  grand  departments,  the  executive,  the  legislative, 
and  the  judicial;  that  the  function  appropriated  to  each  of 
these  branches  of  government  shall  be  vested  in  a  separate 
body  of  public  servants,  and  that  the  perfection  of  the 
system  requires  that  the  lines  which  separate  and  divide 
these  departments  shall  be  broadly  and  clearly  defined. 
it  is  also  essential  to  the  successful  working  of  the  system 
that  the  persons  intrusted  with  power  in  any  one  of  these 
branches  shall  not  be  permitted  to  encroach  upon  the 
powers  confided  to  the  others,  but  that  each  shall,  by  the 
law  of  its  creation,  be  limited  to  the  powers  appropriated 

'  For  similar  declarations  in  the  other  revolutionar)' state  constitutions,  see  "The 
Federalist,"  no.  46;  also  Morey  and  Webster,  "The  First  State  Constitutions," 
in  the  "Annals  of  the  American  Academy  of  Political  and  Social  Science,"  vols.  IV 
and  IX,  respectively;  and  Bondy,  "The  Separation  of  Governmental  Powers," 
p.  151. 


LIMITATIONS   OF   THEORY   OF   SEPARATION  417 

to  its  own  department,  and  no  other."  ^  In  various  foreign 
constitutions,  particularly  those  which  have  been  framed 
under  the  influence  of  American  ideas,  the  theory  is  em- 
bodied in  similar  form.^  In  the  states  of  Europe,  where 
the  cabinet  system  of  government  prevails,  the  close 
connection  between  the  legislative  and  executive  organs 
constitutes  an  important  exception  to  the  theory;  yet, 
upon  careful  examination,  the  violation  of  the  principle 
will  be  seen  to  be  really  less  than  it  appears,  since  the  func- 
tions of  legislation  and  execution  are  in  fact  intrusted  to 
separate  organs,  even  though  one  is  controlled  by  and  is 
responsible  to  the  other  for  the  manner  in  which  it  exer- 
cises its  powers.  In  none  of  them  is  the  legislature  really 
the  executor  of  the  law  or  the  judge  of  the  controversies 
raised  in  the  course  of  its  application;  nor  does  the  judi- 
ciary legislate  or  administer.  The  inconvenience  and  dan- 
ger, however,  of  such  a  confusion  of  functions  is  admit- 
ted by  European  writers  as  well  as  by  those  in  America.^ 

II.    LIMITATIONS   OF  THE   THEORY   OF  THE   SEPARATION 

OF  POWERS 

When  we  assert  it  to  be  a  fundamental  principle  of  polit-  The 
ical   science   that   the   legislative,    executive,   and   judicial  inca°p7bie 
functions  of  government  should  be  intrusted  to  separate  ^  ^^^^'^^ 
and  independent  organs  or  departments,  we  are  to  under-  tion 
stand  the  proposition  as  being  true  only  in  a  limited  sense. 
Both    reason    and    experience   abundantly   show    that   no 
government  can  be  organized  on  the  principle  of  the  abso- 
lute and  complete  separation  of  the  departments  among 
which  the  legislative,  executive,  and  judicial  functions  are 
distributed.     There  is  not  now  and  never  has  been  a  con- 
stitution in  which  the  three  departments  were  not  more 

^  Kilbourne  v.  Thompson,  103  U.S.,  p.  188. 

^  For  example,  in  those  of  Argentina,  Australia,  Brazil,  Chile,  and  Mexico. 
^  Compare,  for  example,  Esmein,   "Droit  constitutionnel,"  pp.  364-365;    and 
Mill,  "Representative  Government,"  p.  83. 
POL.  SCI.  —  27 


4i8        DISTRIBUTION   OF   POWERS   OF    GOVERNMENT 

or  less  connected  and  dependent  one  upon  the  other,  and 
in  which  each  exercised  powers  that,  under  a  strict  appli- 
cation of  the  theory,  did  not  belong  more  properly  to  one 
of  the  others.  In  short,  the  doctrine  of  the  separation  of 
powers  has  never  been  anything  more  than  a  theory  and 
an  ideal. 
Locke's  John  Locke,  the  first  political  writer  to  attach  great  im- 

**  portance  to  the  theory,  while  contending  that  legislative 

and  executive  powers  should  be  vested  in  separate  hands, 
recognized  what  is  now  generally  admitted,  that  in  prac- 
tice the  principle  is  incapable  of  full  realization;  "for," 
he  said,  "the  legislature  not  being  able  to  foresee  and 
provide  by-laws  for  all  that  may  be  useful  to  the  com- 
munity, the  executor  of  the  laws  having  the  power  in  his 
hands,  has  by  the  common  law  nature  a  right  to  make 
use  of  it,  for  the  good  of  society,  in  many  cases  where 
the  municipal  law  has  given  no  directions.  Nay,  many 
things  there  are  which  the  law  can  by  no  means  provide 
for;  these  must  necessarily  be  left  to  the  discretion  of  him 
that  has  the  executive  power  in  his  hands."  ^ 
English  Montesquieu,  who,  as  has  been  said,  made  the  principle  of 

hi^Mon-  separation  a  doctrine  of  liberty  and  gave  it  an  importance 
tesquieu's  rarely  attained  by  any  political  theory,  obviously  did  not  un- 
derstand that  it  involved  the  absolute  independence  of  each 
department  of  the  others.^  He  must  have  known  that  the 
British  constitution,  of  which  he  was  writing  when  he  laid 
down  his  famous  proposition  regarding  the  doctrine  of  the 
separation  of  powers,  did  not  in  fact  recognize  the  doctrine 

'  "Two  Treatises  of  Government,"  sec.  159.  See  also  Goodnow,  "Politics  and 
Administration,"  pp.  11-12;  also  his  Principles  of  Administrative  Law,"  ch.  3; 
Bondy,  "Separation  of  Governmental  Powers,"  p.  117;  Treitschke,  "Politik,"  vol 
II,  p.  3;    Jellinek,  "Recht  des  mod.  Staates,"  p.  589. 

*  Blackstone,  who  shared  Montesquieu's  enthusiasm  for  the  theory  of  the  separa- 
tion of  powers,  did  not  overlook  the  advantage  of  an  "occasional  intermixture  of 
legislative  and  executive  functions."  "It  is  highly  necessary  for  preserving  the 
balance  of  the  constitution,"  he  observed,  "that  the  executive  power  should  be 
a  branch,  though  not  the  whole  of  the  executive." 


LIMITATIONS   OF   THEORY   OF   SEPARATION  419 

except  in  a  qualified  sense. ^  At  that  time,  as  now,  the  Eng- 
lish executive  was  a  committee  of  the  legislature;  one 
chamber  of  the  legislature  constituted  an  important  part 
of  the  judiciary  and  at  the  same  time  "a  great  constitu- 
tional council  of  the  executive";  and  the  judiciary  was 
to  a  considerable  extent  subordinate  to  both  the  executive 
and  the  legislature,  being  appointed  by  the  one  and  de- 
pendent on  the  other  for  its  subsistence.  The  laws  were 
often  executed  by  authorities  which  at  the  same  time  ad- 
ministered justice,  and  some  of  the  minor  judicial  authori- 
ties, notably  the  justices  of  the  peace,  were  important 
administrative  authorities.^ 

When  Montesquieu  declared,  therefore,  that  there  could  Montes- 
be  no  liberty  where  the  executive  and  the  judicial  powers  D^'ctrine 
were  united  in  the  same  hands,  and  where  the  executive  was  0/  Separa- 
not  separated  from  the  legislative,  he  stated  what  the  ex- 
perience of  England  then  and  now  contradicts.     There  is 
every  reason  for  believing  that  Montesquieu  did  not  mean 
to  exclude  each  department  from  all  control  over  the  acts 
of  the  others  or  from  all  share  or  agency  in  their  functions. 
This  was  the  judgment  of  James  Madison,  who  wrote  at  a 
time  when  Montesquieu's  ideas  were  still  fresh  in  the  minds 
of  political  writers  and  when  they  were  being  defended  by 
his  American  followers.     "On  the  slightest  view  of  the  Brit- 
ish constitution,"  observed  Madison,   "we  must  perceive 
that  the  legislative,  executive,  and  judiciary  departments 
are  by  no  means  totally  separate  and  distinct  from  each 
other."     "From  these  facts,  by  which   Montesquieu  was  Madison's 
guided,"  asserted  Madison,  "it  may  clearly  be  inferred,  that  JatToT*' 
in  saying  '  there  can  be  no  liberty  where  the  legislative  and 
executive  powers  are  united  in  the  same  person  or   body 

^  Dicey,  however,  thinks  that  Montesquieu  misunderstood  the  principles  and 
practices  of  the  English  constitution,  as  his  doctrine  was  in  turn  "misunderstood, 
exaggerated,  and  misapplied  by  the  French  statesmen  of  the  Revolution."  "Law 
of  the  Constitution,"  p.  187. 

^Compare  Goodnow,  "Principles  of  Administrative  Law,"  p.  25;  Bondy,  op. 
cj/.,ch.  4;  "The  Federalist,"  No.  47;  Maine,  "Popular  Government,"  pp.  219-220. 


420        DISTRIBUTION   OF   POWERS   OF    GOVERNMENT 

of  magistrates/  or,  'if  the  power  of  judging  be  not  sepa- 
rated from  the  legislative  and  executive  powers,'  he  did 
not  mean  that  these  departments  ought  to  have  no  partial 
agency  in,  or  no  control  over,  the  acts  of  each  other.  His 
meaning,  as  his  own  words  import,  and  still  more  con- 
clusively as  illustrated  by  the  example  in  his  eye,  can 
amount  to  no  more  than  this,  where  the  whole  power  of 
one  department  is  exercised  by  the  hands  which  hold  the 
whole  power  of  another  department,  the  fundamental  prin- 
ciples of  a  free  constitution  are  subverted.  This  would 
have  been  the  case  in  the  constitution  examined  by 
him,  if  the  king,  who  Is  the  sole  executive  magistrate,  had 
possessed  also  the  complete  legislative  power,  or  the 
supreme  administration  of  justice;  or  if  the  entire  legis- 
lative body  had  possessed  the  supreme  judiciary  or  the 
supreme  executive  authority."  ^ 
Limita-  When  the  framers  of  the  American  constitution  came 

thJxhiory  ^o  apply  the  theory  in  practice,   they  recognized  the  im- 
eariy  practicability,  not  to  say  the   undesirability,  of   absolute 

nized^'  and  Complete  separation.  "  If  we  look  to  the  constitutions 
of  the  several  states,"  said  Madison,  "we  find,  notwith- 
standing the  emphatical  and,  in  some  instances,  the  un- 
qualified terms  in  which  the  axiom  has  been  laid  down, 
there  is  not  a  single  instance  in  which  the  several  depart- 
ments of  power  have  been  kept  absolutely  separate  and 
distinct."  Some  of  the  distributing  clauses,  in  fact,  ex- 
pressly recognized  limitations  upon  the  theory.  Thus 
the  constitution  of  New  Hampshire  (1776)  qualified  the 
principle  by  declaring  that  the  "  legislative,  executive,  and 
judiciary  powers  ought  to  be  kept  as  separate  from  and 
independent  of  each  other  as  the  nature  of  a  free  govern- 
ment will  admit;  or  as  is  consistent  with  the  chain  of  con- 
nection that  binds  the  whole  fabric  of  the  constitution  in 
one  indissoluble  bond  of  unity  and  amity."  Madison 
himself,  in  defending  the  doctrine  in   its   qualified   form, 

'  "The  Federalist,"  no.  46. 


LIMITATIONS    OF   THEORY   OF   SEPARATION  421 

asserted  that  "  unless  the  departments  were  so  far  con- 
nected and  blended  as  to  give  to  each  a  constitutional 
control  over  the  others,  the  degree  of  separation  which 
the  maxim  requires  as  essential  to  a  free  government  can 
never  in  practice  be  duly  maintained."  He  stated  the  The  True 
principle  in  a  very  general  way  when  he  said  that  "  the  ftated^by 
powers  properly  belonging  to  one  department  ought  not  to  Madison 
be  directly  and  completely  administered  by  either  of  the 
other  departments;  it  is  equally  evident  that  neither  of 
them  ought  to  possess,  directly  or  indirectly,  an  overruling 
influence  over  the  others  in  the  administration  of  their 
respective  powers."  ^  This  was  probably  all  that  Locke, 
Montesquieu,  and  Blackstone  intended  the  theory  to 
mean,  though  it  will  readily  be  admitted  that  the  prin- 
ciple as  thus  stated  is  so  broad  and  elastic  that  it  can  have 
little  value  as  a  practical  rule. 

The  strict  separation  of  powers  Is  not  only  impracticable 
as  a  working  principle  of  government,  but  it  is  one  not  to 
be  desired  in  practice.  The  experience  of  the  English  and 
other  constitutions  where  the  principle  is  not  strictly  ob- 
served shows  that  it  is  not  a  necessary  condition  of  free 
institutions,  and  that  there  is  no  necessary  danger  to  lib- 
erty In  allowing  the  lawmaking  body  to  execute  or  even 
to  judge.^ 

John  Stuart  Mill  pointed  out  that  If  each  department  Absolute 
of   the  government  were   completely  independent  in   its  ^ce^oTthe 
sphere  so  that  it  could  thwart  the  actions  of  the  others,  fre-  Depart- 
quent  deadlocks  would  be  inevitable,  since  "each  depart-  pracUca- 
ment  acting  in  defense  of  Its  own  powers  would  never  lend  ^^® 
its  aid  to  the  others;   and  the  consequent  loss  in  efficiency 
would  outweigh  all  the  possible  advantages  arising  from 
the  independence."  ^    This  danger  was  recognized  by  Black- 

^  "The  Federalist,"  No.  47.  Compare  also  Jefferson's  "Notes  on  Virginia," 
P-  195- 

'  Compare  Crane  and  Moses,  "  Politics,"  p.  194. 

'  "Representative  Government,"  p.  82;  Compare  also  Duguit,  "La  Separation 
des  Pouvoirs,"  p.  i. 


42  2        DISTRIBUTION    OF   POWERS   OF   GOVERNMENT 

stone,  who,  while  defending  the  principle  of  the  separation 
of  the  departments,  declared  that  their  "total  disjunction" 
would  in  the  end  produce  the  same  tyrannical  effects  as 
their  complete  union  in  the  same  hands,  "by  causing  that 
union  against  which  it  seems  to  provide."  The  different 
attributes  of  sovereignty,  observes  Esmein,  cannot  be  exer- 
cised separately  any  more  than  the  different  powers  of  a 
human  being;  they  coordinate  naturally  and  necessarily  in 
a  common  action  which  presupposes  their  cooperation/ 
The  true  way  to  prevent  the  encroachment  of  one  depart- 
ment upon  the  domain  of  the  others  is,  as  Madison  has 
aptly  remarked,  to  permit  each  to  participate  in  the  func- 
tions of  the  others  to  such  an  extent  as  to  check  them  and 
keep  them  in  their  proper  places  without,  however,  con- 
trolling them.^ 

The  framers  of  the  United  States  constitution,  impressed 
as  they  were  with  the  value  of  the  principle  of  separation, 
did  not  delude  themselves  into  supposing  that  any 
precise  or  exact  delineation  of  the  three  spheres  could 
be  drawn,  or  that  anything  was  to  be  gained  by  an  abso- 
lute separation  of  authorities  such  as  the  French  Revolu- 

'  "Droit  constitutionnel,"  p.  369.  Duguit  points  out  that  the  separation  of 
authorities  or  departments  is  often  confused  with  the  separation  of  functions.  The 
greatest  mistake  of  the  French  National  Assembly  of  1789,  he  says,  was  in  trying  to 
separate  not  only  the  functions  of  government  but  also  the  authorities  {pouvoirs)  by 
creating  three  separate  entities  and  investing  each  with  a  part  of  sovereignty  in 
violation  of  the  principle  of  the  unity  of  sovereignty.  Neither  Locke  nor  Montes- 
quieu, Duguit  declares,  ever  fell  into  such  an  error.  Neither  intended  to  establish  ?. 
legal  theory,  but  simply  to  show  how  the  English  constitution,  by  a  distribution  of 
functions  and  a  certain  collaboration  of  organs,  had  established  guarantees  of  liberty. 
Montesquieu  never  used  the  expression  "separation  of  powers,"  nor  did  he  ever 
maintain  that  organs  vested  with  the  several  functions  of  government  should  be 
absolutely  independent  of  each  other  and  without  any  control  over  one  another. 
"Droit  constitutionnel,"  p.  319. 

*  "The  absolute  independence  of  each  department,"  observes  Bluntschli,  "con- 
tradicts the  organic  nature  of  the  state.  Each  must  in  a  certain  sense  be  subordinate 
to  the  others,  or  the  state  would  be  torn  to  pieces,  for  "the  head  cannot  be  separated 
from  the  body  and  made  equal  to  it  without  destroying  the  man."  "Allgemeine 
Staatslehre,"  bk.  VII,  ch.  7. 


LIMITATIONS   OF   THEORY    OF   SEPARATION  423 

tionists  undertook  to  introduce.  They  had  in  mind  only  a 
general  distribution  and  aimed  merely  at  a  rough  classifica- 
tion. They  did  not  trouble  themselves  to  inquire  whether 
a  particular  power  was  legislative,  executive,  or  judicial 
in  its  nature,  but  were  concerned  rather  with  the  question 
of  which  department  was  best  fitted  to  exercise  a  given 
power.*  It  was  with  them  a  question  of  administrative 
convenience  and  administrative  expediency  rather  than 
one  of  pure  political  philosophy.  Certain  powers  were 
vested  in  the  executive,  not  because  they  were  necessarily 
executive  in  character,  but  because  the  organization  and 
methods  of  the  executive  department  were  such  that  those 
powers  could  be  better  exercised  by  it  than  by  the  depart- 
ment to  which  they  strictly  belonged.  Thus  the  power 
of  issuing  ordinances  and  of  negotiating  treaties  was  con- 
ferred upon  the  executive,  since  both  are  a  species  of  legis- 
lation which  experience  and  reason  have  clearly  shown 
can  be  more  efficiently  performed  by  the  executive  depart- 
ment than  by  the  legislative  department,  where,  under  a 
purely  scientific  interpretation  of  their  nature,  they  more 
properly  belong.  Likewise  it  is  desirable,  if  not  necessary, 
that  the  courts  be  allowed  a  share  in  legislation  through 
their  power  to  interpret  the  written  law  and  to  declare 
what  is  the  unwritten  law.  For  the  same  reason  many 
other  exceptions  to  the  theory  of  separation  were  intro- 
duced in  the  organization  of  the  government. 

The  legislative  department  was  made  a  sort  of  deposi-  The  Test 

r  ,  r  ,   .    1  •   1  1-         of  whether 

tory  tor  many  classes  or   powers  which  are  neither  dis-  an  Act  is 
tinctly  legislative,  executive,  nor  judicial  in  character,  but  ^^J^ex- 
which  partake  of  the  characteristics  of  all  three,  and  which  ecutive,  ox 
were  conferred  upon  the  legislature  through  considerations 
of   administrative    convenience    or    political    expediency.^ 
Every  act  which  proceeds  from  the  legislature  is  therefore 
classed  as  legislative;  every  act  performed  by  the  executive 

*  Bondy,  op.  cit.,  p.  297. 

*  Compare  Cooley,  "Principles  of  Constitutional  Law,"  p.  44. 


424        DISTRIBUTION   OF   POWERS   OF   GOVERNMENT 

department  is  classed  as  executive;  and  so  on,  regardless  of 
its  real  nature/ 
The  True  While  no  department  exercises  all  the  power  which  upon 
oAhe"^  a  strict  interpretation  belongs  to  it,  it  nevertheless  exercises 
Theory  the  essential  part  of  it.  Each  department  exercises  inci- 
dental rights  of  a  nature  intrinsically  different  from  the  mass 
of  powers  logically  belonging  to  it,  but  they  are  such  only 
as  are  necessary  to  enable  it  to  perform  efficiently  its  func- 
tions as  an  independent  branch  of  the  government  and  are 
in  reality  part  of  the  principal  power  itself.^  In  practice, 
therefore,  the  theory  has  never  been  construed  to  mean  that 
all  the  legislative  power  shall  be  exercised  by  the  legislative 
department,  or  all  the  executive  power  by  the  executive 
department,  or  all  the  judicial  power  by  the  judicial  depart- 
ment. The  theory  otherwise  understood  would  be  impos- 
sible of  practical  application  in  any  governmental  system.' 
It  is  impossible  to  draw  a  strict  line  of  demarcation 
between  the  several  departments.  There  is  a  common 
borderland  between  them,  within  which  each  department 
must  tolerate  the  others  if  government  is  to  be  efficient. 
No  legislature  can  discharge  entirely  all  those  functions 
which  under  a  strict  interpretation  of  the  theory  are  legis- 

^  Thus  the  granting  of  a  divorce  is  regarded  as  legislative  or  judicial  according  as 
it  is  granted  by  the  legislature  or  the  courts.  And  so  with  the  issue  of  a  charter  or 
an  ordinance  or  the  appointment  of  an  officer,  etc. 

^  Compare  State  v.  Noble,  ii8  Indiana,  p.  350. 

^  "The  trouble  with  the  theory,"  says  Woodrow  Wilson,  "is  that  government  is 
not  a  machine,  but  a  living  thing  —  no  living  thing  can  have  its  organs  offset  against 
each  other  as  checks  and  live.  On  the  contrary,  its  life  is  dependent  on  their  quick 
cooperation,  their  ready  response  to  the  commands  of  instinct  or  intelligence,  their 
amicable  community  of  purpose.  Government  is  not  a  body  of  blind  forces;  it  is 
a  body  of  men,  with  highly  differentiated  functions,  no  doubt,  in  our  modern  day  of 
specialization,  but  with  a  common  task  and  purpose.  Their  cooperation  is  indis- 
pensable, their  warfare  fatal.  There  can  be  no  successful  government  without 
leadership  or  without  the  intimate,  almost  instinctive,  coordination  of  the  organs  of 
life  and  action.  This  is  not  theory,  but  fact,  and  displays  its  force  as  fact,  whatever 
theories  may  be  thrown  across  its  track.  Living  political  constitutions  must  be 
Darwinian  in  structure  and  in  practice."  "Constitutional  Government  in  the 
United  States,"  p.  56. 


LIMITATIONS   OF   THEORY   OF   SEPARATION  425 

lative.  Details  must  be  filled  up  and  rules  issued  by  the 
executive,  governing  the  application  of  the  law,  if  the 
government  is  to  be  conducted  on  practical  lines.  In 
short,  functions  may  be  separated,  but  not  the  departments 
themselves/ 

While  the  departments  are,  theoretically,  equal  and  Superi- 
coordinate,  they  "constitute  one  brotherhood  whose  con-  theLef^is 
stant  trust  requires  a  mutual  toleration  of  what  seems  to  be  i**^" 
a  'common  because  of  vicinage'  bordering  on  the  domains 
of  each."  ^  In  reality,  however,  the  departments  are  not 
equal.  In  all  governments  the  legislative  department  is 
in  fact  the  most  powerful  of  the  three  and  the  judiciary 
the  weakest.^  The  powers  of  the  legislative  department  in 
most  governments  are  not  specifically  enumerated,  but  are 
general  or  residuary  in  character;  in  short,  it  is  a  sort  of 
repository,  as  has  been  said,  of  all  powers  not  conferred  on 
the  other  departments.  It  possesses  everywhere  a  large 
control  over  the  organization  and  activities  of  the  other 
departments,  through  its  power  of  supply  and  its  power  to 
create  public  offices  and  to  provide  for  their  support.  It 
not  only  makes  the  laws  that  are  to  be  interpreted  by  the 
judiciary  and  enforced  by  the  executive,  but  lays  down  the 
rules  and  conditions  in  accordance  with  which  the  executive 
acts.  The  legislature  is  thus,  in  a  sense,  the  regulator  of 
the  administration.*  The  very  nature  of  government  is 
such  that  the  will  of  the  lawmaking  power  must,  to  a  cer- 
tain extent,  be  superior  to  the  executive  and  the  judiciary. 
This  is  necessarily  so  because  the  will  of  the  state  must  be 
expressed  before  it  can  be  interpreted  and  enforced,  and  in 
formulating  that  will  the  legislature  may,  as  has  been  said, 

*  Compare  Goodnow,  "Politics  and  Administration,"  p.  14. 

'  Brown  v.  Turner,  70  N.C.  93. 

'  Cf.  Story,  "  Commentaries,"  sec.  534.  On  the  subordination  of  the  executive 
to  the  legislature,  see  Berthelemy,  op.  a't.,  bk.  II,  chs.  1-2. 

■•  Cf.  Goodnow,  "  Comparative  Administrative  Law,"  vol.  I,  p.  31 ;  and 
Bluntschli,  op.  cit.,  bk.  VII,  ch.  7. 


426        DISTRIBUTION   OF   POWERS   OF    GOVERNMENT 


Weak- 
ness of 
the  Judi- 
ciary 


prescribe  the  conditions  and  circumstances  under  which 
execution  shall  take  place. 

The  judiciary,  on  the  contrary,  possesses  no  control  over 
the  source  of  supply  or  over  the  army  or  the  governmental 
organization  of  the  state.  It  cannot,  as  has  been  remarked 
by  a  distinguished  commentator,  lay  taxes,  nor  appropriate 
money,  nor  command  armies  nor  appoint  officers.  It  has 
no  means  of  influence  through  the  power  of  patronage,  no 
powers,  in  short,  that  can  be  wielded  for  itself/ 


'  Story,  "Commentaries,"  sec.  542. 


CHAPTER  XIV 
THE  LEGISLATIVE   DEPARTMENT 

Suggested  Readings:  Benoist,  "La  Crise  de  I'fitat  moderne," 
chs.  3-5;  Bluntschli,  "  Allgemeines  Staatsrecht,"  bk.  II,  also  his 
"Politik,"  bk.  X,  ch.  3;  Bornhak,  "Allgemeine  Staatslehre,"  pp.  94- 
133;  Brougham,  "The  British  Constitution,"  Works,  vol.  XI,  chs. 
3-7;  Burgess,  "Political  Science  and  Constitutional  Law,"  vol.  II, 
bk.  Ill,  ch.  5;  Crane  and  Moses,  "Politics,"  ch.  13;  Duguit,/' Droit 
constitutionnel,"  sees.  52,  53,  56,  57,  106-122;  also  his  "L'Etat,  les 
Gouvernants  et  Les  Agents,"  ch.  2  ;  Esmein,  "  Droit  constitutionnel," 
pt.  II,  ch.  5;  also  pt.  I,  ch.  3  ;  also  pp.  198-209  ;  Gumplowicz,  "  All- 
gemeines  Staatsrecht,"  bk.  I,  ch.  9  ;  Hare,  "  Election  of  Representa- 
tives," chs.  1-5;  Jellinek,  "Recht  des  modernen  Staates,"  bk.  Ill, 
ch.  17;  Kent,  "Commentaries,"  Lect.  XI;  L-weleye,  "Le  Gou- 
vernement  dans  la  Democratic,"  vol.  II,  bk.  VIII;  Le  acock,  "Ele- 
ments of  Political  Science,"  pt.  II,  ch.  2;  Lecky,  "Democracy  and 
Liberty,"  vol.  I,  chs.  3  and  4;  Lewis,  "Use  and  Abuse  of  Political 
Terms,"  ch.  12;  Lieber,  "Civil  Liberty  and  Self-government,"  chs. 
15-17;  also  his  "Political  Ethics,"  vol.  II,  bk.  VI,  chs.  1-3;  Mill, 
"Representative  Government,"  chs.  5,  7,  9,  12,  13;  Ordronaux, 
"  Constitutional  Legislation,"  ch.  6;  Posado,  "Tratado  de  Derecho 
Politico,"  vol.  II,  bk.  VI,  chs.  1-3;  Reinsch,  "  American  Legislatures 
and  Legislation  Methods";  Rousseau,  "Contrat  social,"  bk.  II, 
ch.  15;  SiDGWiCK,  "Elements  of  Politics,"  chs.  20  and  23;  St.  Girons, 
"La  Separation  des  Pouvoirs,"  bk.  I,  ch.  2;  Story,  "Commenta- 
ries," bk.  Ill,  ch.  8;  Wilson,  "Congressional  Government,"  chs.  2  and 
3;  also  his  "  Constitutional  Government,"  chs.  4  and  5. 

I.  ORGANIZATION:  THE  UNICAMERAL  VERSUS  THE  BICAMERAL 

PRINCIPLE 

It  has  become  almost  an  axiom  in  political  science  that  Early 
legislative  bodies  should  consist  of  two  chambers.^     At  the 
present  time  those  constructed  on  the  unicameral  principle 

*  Cf.  Esmein,  "Droit  constitutionnel,"  third  ed.,  p.  72;  Bryce,  "American  Com- 
monwealth," abridged  ed.,  p.  331;  Laveleye,  "Le  Gouvernement  dans  la  Demo- 
cratie,"  vol.  II,  p.  7;  Story,  "Commentaries,"  vol.  I,  sec.  548. 

427 


428  THE   LEGISLATIVE   DEPARTMENT 

are  found  only  in  Greece,  Luxembourg,  Servia,  the  Cana- 
dian provinces  of  British  Columbia,  Manitoba,  and  Ontario, 
a  few  of  the  smaller  German  states,  and  some  of  the  Swiss 
cantons.  Formerly,  however,  the  unicameral  idea  found 
more  favor  than  now.  In  America,  in  the  eighteenth  cen- 
tury, it  had  an  influential  advocate  in  Benjamin  Franklin, 
who  is  said  to  have  compared  a  double-chambered  legis- 
lative assembly  to  a  cart  with  a  horse  hitched  to  each 
end,  both  pulling  in  opposite  directions.  Largely  through 
his  influence  the  legislature  of  Pennsylvania  under  its  first 
constitution  was  constructed  on  the  unicameral  principle, 
and  we  have  the  testimony  of  John  Adams  that  the  ques- 
tion of  whether  the  early  American  legislatures  generally 
should  consist  of  one  or  two  chambers  was  one  of  tran- 
scendent importance  at  the  time  of  the  adoption  of  the  first 
state  constitutions.^ 
Experi-  In  France,  at  the  time  of  the  Revolution,  the  unicameral 

the  Uni-     idea,  had  many  supporters,  and  the  principle  was  incorpo- 
camerai      rated  in  the  constitution  of  1701  by  an  almost  unanimous 

System  .  i -y        J 

vote  of  the  National  Assembly,  and  was  continued  in  the 
constitution  of  1793.^  The  constitution  of  the  year  III 
(1795),  however,  established  the  bicameral  system;  and  it 
was  continued  until  1848,  when  the  single  chamber  was 
again  reverted  to,  though  only  for  a  brief  interval.  Among 
the  powerful  advocates  of  the  unicameral  principle  in  1848 
was  Lamartine,  as  Turgot  had  been  its  ablest  defender  at 
the  time  of  the  Revolution.  The  experience  of  France  with 
single-chambered  legislative  assemblies,  however,  was  not 
satisfactory;  and  their  proceedings,  it  is  said,  "  were  marked 
by  violence,  instability,  and  excesses  of  the  worst  kind."  ^ 

^  See  his  essay  entitled,  "A  Defense  of  the  American  Constitutions." 
"  For  a  summary  of  the  views  of  the  advocates  and  opponents  of  the  single  chamber 
system  in  the  French  Constituent  Assembly  of  1789,  see  St.  Girons,  "La  Separation 
des  Pouvoirs,"  pp.  175  flf. 

'  Boissy  d'Anglas,  one  of  the  French  advocates  of  the  bicameral  system  at  the  time 
of  the  Revolution,  asserted  in  1795  that  many  of  the  evils  which  Frenchmen  had  suf- 
fered since  the  beginning  of  the  Revolution  had  been  due  to  the  violence  and  excesses 


THE    UNICAMERAL    SYSTEM  429 

With  remarkably  few  exceptions  the  states  which  have  ex- 
perimented with  the  single  chamber  system  have  aban- 
doned it  for  the  bicameral  system.  In  England,  during 
the  Commonwealth,  it  was  tried  for  a  brief  period,  but  with- 
out success;  and  the  House  of  Lords,  which  had  been  abol- 
ished, was  soon  restored.  The  lack  of  a  second  chamber  in 
the  national  congress  was  one  of  the  causes  of  dissatisfaction 
with  the  Articles  of  Confederation  in  the  United  States,  and, 
with  the  exception  of  Benjamin  Franklin,  none  of  the 
framers  of  the  constitution  favored  retaining  the  unicam- 
eral system.^  In  Pennsylvania,  where  it  existed  for  a  time, 
we  are  told  that  it  was  marked  by  a  "want  of  stability"  and 
resulted  in  "extremely  impulsive  and  variable  legislation."^ 
It  was  soon  abandoned  in  Pennsylvania  and  in  the  few 
other  states  where  it  had  been  introduced.  Other  coun- 
tries, notably  Spain,  Portugal,  Naples,  Mexico,  Bolivia, 
Ecuador,  and  Peru,  have  all  abandoned  it,  after  a  fair  trial, 
for  the  double-chambered  system. 

The  chief  argument  advanced  in  favor  of  the  unicameral 

of  a  single-chambered  legislative  assembly.  See  also  St.  Girons,  "La  Separation 
des  Pouvoirs,"  p.  178. 

'  Compare  Hamilton,  in  "The  Federalist,"  Nos.  62  and  63.  See  also  the  editor's 
note  to  Ford's  editionof  "The  Federalist,"  No.  22,  p.  142.  "The  Continental 
Congress,"  he  remarks,  "had  illustrated  the  evils  of  a  single  legislative  body. 
Frequently  it  had  adopted  resolutions  only  to  repeal  them  the  next  day^  and  in 
several  cases  had  rejected,  considered,  and  adopted,  and  again  rejected  in  the  course 
of  a  week,  the  same  motion;  the  change  being  due  to  the  arrival  or  departure  of 
members,  and  to  the  lack  of  any  check."  See  also  Kent's  "  Commentaries,"  twelfth 
ed.,  vol.  I,  p.  222,  where  it  is  said  that  "the  instability  and  passion"  which  marked 
the  proceedings  of  the  single  chamber  and  assemblies  of  Pennsylvania  and  Georgia 
"  were  very  visible  at  the  time  and  the  subject  of  much  public  animadversion."  "  No 
portion  of  the  political  history  of  mankind,"  remarks  Kent,  "is  more  full  of  instruc- 
tive lessons  on  this  subject,  or  contains  more  striking  proof  of  the  faction,  instability, 
and  misery  of  states,  under  the  dominion  of  a  single  unchecked  assembly,  than 
that  of  the  Italian  republics  of  the  middle  ages  which  arose  in  great  numbers  and 
with  dazzling  but  transient  splendor,  in  the  interval  between  the  fall  of  the  western 
and  the  eastern  empire  of  the  Romans.  They  were  all  alike  ill  constituted,  with  a 
single  unbalanced  assembly.  They  were  alike  miserable  and  all  ended  in  similar 
disgrace."  , 

'"The  Federalist,"  Ford's  ed.,  p.  142,  note  i. 


43° 


THE   LEGISLATIVE   DEPARTMENT 


Argument 
in  Favor 
of  the 
Unicam- 
eral Sys- 
tem 


system  by  the  French  statesmen  and  political  writers  in 
1789  and  again  in  1848  was  that  it  secured  "unity"  instead 
of  "duality"  in  the  organization  of  the  legislative  branch 
of  the  government.  Two  or  three  chambers,  it  was  argued, 
meant  two  or  three  sovereignties.^  "The  law,"  said  Sieyes, 
"is  the  will  of  the  people;  the  people  cannot  at  the  same 
time  have  two  different  wills  on  the  same  subject;  therefore, 
the  legislative  body  which  represents  the  people  ought  to  be 
essentially  one.  Where  there  are  two  chambers,  discord  and 
division  will  be  inevitable  and  the  will  of  the  people  will  be 
paralyzed  by  inaction."  ^  The  same  view  was  expressed  by 
Lamartine,  who  maintained  that  the  double  chamber  sacri- 
ficed the  great  principle  of  unity  by  dividing  the  sovereignty 
of  the  state.^  A  similar  line  of  reasoning  was  pursued  by 
Condorcet,  Robespierre,  and  other  leaders  in  France  at  the 
time  of  the  Revolution.  In  America,  likewise,  the  same 
kind  of  argument  was  advanced  by  Franklin  and  others 
against  the  bicameral  theory.  Legislation  being  merely 
the  expression  of  the  common  will,  the  necessity  of  com- 
mitting it  to  two  separate  assemblies,  each  having  a  veto 
upon  the  action  of  the  other,  was  not  apparent.  "All 
the  arguments,"  says  Judge  Story,  "derived  from  the 
analogy  between  the  movements  of  political  bodies  and  the 
operations  of  physical  nature,  all  the  impulses  of  political 
parsimony,  all  the  prejudices  against  a  second  coordinate 


'  Duguit  "Droit  constitutionnel,"  p.  344. 

'  Quoted  by  Laboulaye  in  "  Questions  constitutionnelles,"  p.  349. 

'  Cited  by  Lieber  in  his  "  Civil  Liberty  and  Self-government,"  p.  199.  Compare 
also  Destutt  de  Tracy,  who  argued  that  "the  legislative  body  ought  to  be  a  unit  in 
order  that  it  may  legislate  without  struggling  against  itself."  "  Commentaire  de 
I'Esprit  des  Lois,"  bk.  XI,  ch.  2.  See  also  St.  Girons,  "La  Separation  des  Pouvoirs," 
pp.  175-176.  One  manifest  advantage  of  the  single  chamber  principle  is  that  in 
countries  where  the  cabinet  system  of  government  prevails  ministerial  responsibility 
can  be  more  readily  enforced.  The  existence  of  two  chambers  under  such  a  sys- 
tem is  confusing,  and  one  of  them  must  necessarily  play  a  subordinate  role,  since  it 
has  worked  out  in  practice  that  responsibility  to  two  chambers  cannot  very  well  be 
enforced.  Great  Britain  is  just  now  experiencing  the  difl&culty  of  having  two 
chambers,  each  claiming  to  exercise  equality  of  powers  in  financial  legislation. 


THE   BICAMERAL   SYSTEM  431 

legislative  assembly  stimulated  by  the  exemplification  of 
it  in  the  British  Parliament,  were  against  a  division  of  the 
legislative  power."  ^  In  short,  a  double-chambered  legis- 
lature was  an  assembly  divided  against  itself. 

In  America,  John  Adams  combated  the  doctrines  of  The  view 
Franklin,  Turgot,  and  the  other  French  critics  of  the  bi-  ^d^s^ 
cameral  system,  in  a  rather  remarkable  essay  entitled  "A 
Defense  of  the  Constitutions  of  Government  of  the  United 
States,"  in  which,  among  other  things,  he  defended  with 
ability  and  learning  the  principle  of  the  division  of  the  legis- 
lative power  between  two  coordinate  assemblies.  He  re- 
viewed the  history  of  free  governments  and  undertook  to 
show  that  government  by  single  assemblies  had  "generally 
been  visionary  if  not  corrupt  and  violent  and  had  usually 
ended  in  despotism."  "Of  all  possible  forms  of  govern- 
ment, a  sovereignty  in  a  single  assembly,  successively  chosen 
by  the  people,  is,"  he  said,  "perhaps  the  best  calculated  to 
facilitate  the  gratification  of  self-love,  and  the  pursuit  of  the 
private  interests  of  a  few  individuals  —  In  one  word,  the 
whole  system  of  affairs  and  every  conceivable  motive  of 
hope  or  fear  will  be  employed  to  promote  the  private  in- 
terests of  a  few  of  their  obsequious  majority;  and  there 
is  no  remedy  but  in  arms." 

Notwithstanding  all  the  objections  raised    against    the  Advan- 
bicameral   system,  experience  has  apparently  established  s^g^on?* 
its  advantages  over  the  single  chamber  scheme.     "It  ac-  Chamber 
companies  the  Anglican  race,"   observes  Francis  Lieber, 
"like   the   common    law,   and   everywhere   it    succeeds."^ 
"Of  all  the  forms  of  government  that  are  possible  among 
mankind,"  says  Lecky,  "I  do  not  know  any  which  is  likely 
to  be  worse  than  the  government  of  a  single  omnipotent 

*  "Commentaries,"  vol.  I,  sec.  548.  Duguit  denies  that  the  principle  of  "duality" 
in  the  structure  of  the  legislature  necessarily  means  conflict  and  enfeeblement  of  the 
legislative  power  or  retards  needed  political  reforms,  and  he  shows  from  the  experi- 
ence of  France  that  assertions  to  the  contrary  are  not  supported  by  the  facts.  "Droit 
constitutionnel,"  p.  347. 

*  "Civil  Liberty  and  Self-government,"  p.  197. 


432 


THE   LEGISLATIVE   DEPARTMENT 


It  prevents 
Hasty 
Consid- 
eration of 
Legisla- 
tive Meas- 
ures 


It  affords 
Protection 
against 
Legisla- 
tive Des- 
potism 


democratic  chamber.  It  is  at  least  as  susceptible  as  an 
individual  despot  of  the  temptations  that  grow  out  of  the 
possession  of  an  uncontrolled  power,  and  it  is  likely  to  act 
with  much  less  sense  of  responsibility  and  much  less  real 
deliberation."  ^ 

The  advantages  of  a  second  chamber  may  be  summarized 
as  follows :  First,  it  serves  as  a  check  upon  hasty,  rash,  and 
ill-considered  legislation.  Legislative  assemblies  are  often 
subject  to  strong  passions  and  excitements  and  are  some- 
times impatient,  impetuous,  and  careless.  The  function  of 
a  second  chamber  is  to  restrain  such  tendencies  and  to 
compel  careful  consideration  of  legislative  projects.  It 
interposes  delay  between  the  introduction  and  final  adop- 
tion of  a  measure  and  thus  permits  time  for  reflection  and 
deliberation.^  "One  great  object  of  the  separation  of  the 
legislature  into  two  houses  acting  separately  and  with  co- 
ordinate powers,"  said  Chancellor  Kent,  "is  to  destroy  the 
evil  effects  of  sudden  and  strong  excitement  and  of  precipi- 
tate measures  springing  from  passion, caprice,  prejudice,  per- 
sonal influence,  and  party  intrigue,  which  have  been  found 
by  sad  experience  to  exercise  a  potent  and  dangerous  sway 
in  single  assemblies.^  It  is  clear,  says  Bluntschli,  in  explain- 
ing the  advantages  of  the  bicameral  system,  that  four 
eyes  see  more  and  better  than  two,  especially  when  a  given 
subject  may  be  considered  from  different  standpoints.* 

In  the  second  place,  the  bicameral  principle  not  only 
serves  to  protect  the  legislature  against  its  own  errors  of 
haste  and  impulse,  but  it  also  affords  a  protection  to  the 

^  "Democracy  and  Liberty,"  vol.  I,  p.  299. 

^  Story,  "Commentaries,"  vol.  I,  sees.  550-554. 

'  "Commentaries,"  vol.  I,  lect.  XI.  "There  is  certainly  no  proposition  in  poli- 
tics," says  Lecky,  "  more  indubitable  than  that  the  attempt  to  govern  a  great  hete- 
rogenous empire  simply  by  such  an  assembly  must  ultimately  prove  disastrous,  and 
the  necessity  of  a  second  chamber  to  exercise  a  controlling,  modifying,  retarding, 
and  steadying  influence  has  acquired  almost  the  position  of  an  axiom."  "Democ- 
racy and  Liberty,"  vol.  I,  p.  300.  See  also  St.  Girons,  "La  Separation  des 
Pouvoirs,"  p.   185. 

*  "  Allgemeines  Staatsrecht,"  p.  6. 


THE   BICAMERAL   SYSTEM  433 

individual  against  the  despotism  of  a  single  chamber. 
The  existence  of  a  second  chamber  is  thus  a  guarantee  of 
liberty  as  well  as  to  some  extent  a  safeguard  against 
t^^ranny/  Where  the  whole  legislative  power  is  intrusted 
to  a  single  omnipotent  assembly,  the  restraining  element 
of  a  second  chamber  is  lacking.  There  is  a  natural  pro- 
pensity on  the  part  of  legislative  bodies  to  accumulate 
power  into  their  hands,  to  absorb  the  powers  of  the  ex- 
ecutive and  the  judiciary,  in  short,  to  draw  into  their  grasp 
the  whole  government  of  the  state.  They  have  a  con- 
stant tendency,  observes  Judge  Story,  to  overstep  their 
proper  boundaries,  from  passion,  from  ambition,  from  in- 
advertence, from  the  prevalence  of  faction,  or  from  the 
overwhelming  influence  of  private  interests.  Under  such 
circumstances,  he  adds,  the  only  effective  barrier  against 
oppression,  whether  accidental  or  intentional,  is  to  "sepa- 
rate its  operations,  to  balance  interest  against  interest, 
ambition  against  ambition,  the  combinations  and  spirit 
of  dominion  of  one  body  against  the  like  combinations 
and  spirit  of  another."  ^  The  existence  of  a  second  cham- 
ber, continues  Story,  doubles  the  security  of  the  people  by 
requiring  the  concurrence  of  two  distinct  bodies  in  any 
scheme  of  usurpation  or  perfidy  where  otherwise  the 
ambition  of  a  single  body  would  be  sufficient.^  "The 
necessity  of  two  chambers,"  says  Bryce,  "is  based  on 
the  belief  that  the  innate  tendency  of  an  assembly  to  be- 
come hateful,  tyrannical,  and  corrupt,  needs  to  be  checked 
by  the  coexistence  of  another  house  of  equal  authority. 
The  Americans  restrain  their  legislatures  by  dividing  them, 

*  Cf.  St.  Girons,  "La  Separation  des  Pouvoirs,"p.  182.  See  also  Laveleye,  "Le 
Gouvernement  dans  la  Democratie,"  vol.  II,  p.  11. 

^  "Commentaries,"  vol.  I,  sec.  558.  "The  executive  power  in  our  government," 
said  Jefferson,  "is  not  the  only,  perhaps  not  even  the  principal,  object  of  my 
solicitude.  The  tyranny  of  the  legislature  is  really  the  danger  most  to  be  feared 
and  will  continue  to  be  so  for  many  yeais  to  come."  Letter  to  Madison,  March 
15,  1789. 

*  Ibid.,  sec.  700. 

POL.  SCI.  —  28 


434 


THE   LEGISLATIVE   DEPARTMENT 


It  gives 
Represen- 
tation to 
Different 
Interests 
or  Classes 


just  as  the  Romans  restrained  their  executives  by  substitu- 
ting two  consuls  for  one  king."  * 

A  third  advantage  of  the  bicameral  system  is  that  it 
affords  a  convenient  means  of  giving  representation  to  spe- 
cial interests  or  classes  in  the  state  and  particularly  to  the 
aristocratic  portion  of  society,  in  order  to  counterbalance 
the  undue  preponderance  of  the  popular  element  in  one  of 
the  chambers,  thus  introducing  into  the  legislature  a  con- 
servative force  to  curb  the  radicalism  of  the  popular  cham- 
ber. We  cannot,  says  Bluntschli,  ignore  the  distinction 
between  the  aristocratic  and  democratic  elements  in  the 
population  of  the  state  and  allow  one  of  these  elements 
alone  representation  in  the  legislature  without  doing  the 
other  an  injustice.^  Montesquieu  asserted,  not  without 
some  truth,  that  there  are  always  persons  in  every  state, 
distinguished  by  their  birth,  wealth,  or  honors,  to  whom,  if 
they  are  confounded  with  the  common  people  and  are 
given  only  an  equal  share  in  the  government  with  the  rest, 
the  common  liberty  would  be  slavery  and  who  would  have 

*  "The  American  Commonwealth,"  abridged  ed.,  p.  331.  Sidgwick  observes  that 
passions  are  more  likely  to  affect  a  single  body  than  two,  and  that  the  danger  of  en- 
croachments by  the  legislature  on  the  functions  of  the  executive  is  undoubtedly 
diminished  by  the  existence  of  two  legislative  chambers.  See  further  concerning  the 
safeguards  which  the  bicameral  system  affords  against  legislative  encroachments  upon 
individual  liberty,  his  "Elements  of  Politics,"  p.  406.  John  Stuart  Mill  did  not 
attach  much  importance  to  the  value  of  a  second  chamber  as  a  check  upon  precipi- 
tancy of  legislation  or  as  a  means  of  compelling  deliberation,  and  he  expressed  the 
opinion  that  the  subject  had  received  an  amount  of  attention,  especially  on  the 
continent  of  Europe,  out  of  all  proportion  to  its  importance.  "For  my  own  part," 
he  said,  "I  set  little  value  on  any  check  which  a  second  chamber  can  apply  to  a 
democracy  otherwise  unchecked."  Yet  Mill  admitted  that  a  second  chamber  serves 
an  important  purpose  as  a  check  upon  legislative  despotism.  A  majority  in  a  single 
assembly,  he  said,  with  no  check  but  their  own  will,  "easily  becomes  despotic  and 
overweening,  if  released  from  the  necessity  of  considering  whether  its  acts  will  be  con- 
curred in  by  another  constituted  authority."  "The  same  reason  which  induced  the 
Romans  to  have  two  consuls,"  he  observed,  "makes  it  desirable  that  there  should 
be  two  chambers  that  neither  of  them  may  be  exposed  to  the  corrupting  influence  of 
undivided  power  even  for  the  space  of  a  single  year."  "Representative  Govern- 
ment," ch.  13. 

*  "Allgemeines  Staatsrecht,"  pp.  63-64.  Compare  also  Esmein,  "Droit  constitu 
tionnel,"  pp.  loo-ioi. 


THE  BICAMERAL   SYSTEM  435 

no  interest  in  supporting  the  government,  as  most  of  the 
popular  resolutions  would  be  against  them.  "The  share 
they  should  have  in  the  legislature,"  he  declared,  "ought 
to  be  proportioned  to  their  other  advantages  in  the  state, 
which  can  happen  only  when  they  form  a  body  that  has  a 
right  to  check  .the  licentiousness  of  the  people,  as  the  peo- 
ple have  a  right  to  oppose  any  encroachment  of  theirs."  * 

John  Stuart  Mill  advocated  a  second  chamber  constructed  Mill's 
on  the  principle  of  political  experience  and  training  with-  *^  *™® 
out  reference  to  considerations  of  birth  or  wealth.  If  one 
chamber,  said  Mill,  represents  popular  feeling,  the  other 
should  represent  personal  merit,  tested  and  guaranteed  by 
actual  public  service  and  fortified  by  practical  experience. 
If  one  is  the  people's  chamber,  the  other  should  be  a  cham- 
ber of  statesmen,  a  council  composed  of  all  living  public 
men  who  have  passed  through  important  political  offices  or 
employments.  Such  a  chamber.  Mill  argued,  would  be  not 
merely  a  moderating  body,  or  a  simple  check,  but  also  an  im- 
pelling force.  It  would  be  a  body  of  natural  leaders  and 
would  guide  the  people  forward  in  the  path  of  progress.^ 
The  best  constitution  of  the  second  chamber,  he  declared,  is 
that  which  embodies  the  greatest  number  of  elements  ex- 
empt from  the  class  interests  and  prejudices  of  the  major- 
ity, but  having  in  themselves  nothing  offensive  to  demo- 
cratic feeling.^ 

'  "Esprit  des  Lois,"  bk.  XI,  ch.  6. 

2  "Representative  Government,"  ch.  13.  Mill  suggested  that  such  a  chamber 
might  include  all  who  had  had  distinguished  legislative  experience,  all  w^ho  had  held 
high  judicial  positions,  all  who  had  been  members  of  the  cabinet  for  at  least  two 
years,  all  who  had  held  the  highest  positions  in  the  army  and  navy,  all  who  had  held 
diplomatic  positions  of  the  first  rank,  and  those  who  had  been  governors  of  colonies 
for  a  certain  length  of  time.  In  short,  membership  in  this  chamber  should,  he  said, 
be  restricted  to  those  who  had  attained  legal,  political,  or  military  distinction. 

'  M.  Duguit,  a  distinguished  French  writer,  thinks  an  ideally  constituted  legisla- 
tive body  would  be  that  in  which  one  chamber  would  represent  the  population  as 
a  whole  and  the  other  the  various  groups  into  which  the  population  is  divided :  com- 
munities, families,  commercial,  scientific,  and  even. religious  associations,  etc.  The 
legislature  would  then  represent  all  the  important  constituent  elements  of  the 
country.     "Droit  constitutionnel,"  p.  349. 


436 


THE   LEGISLATIVE   DEPARTMENT 


Capital 
and  Labor 
Repre- 
sented 


The  Bi- 
cameral 
System  in 
Federal 
States 


The  Two 
Chambers 
should 
differ  in 
Principle 


The  bicameral  system  also  affords  a  means  of  giving  sep- 
arate representation  to  the  somewhat  dissimilar  interests  of 
capital  and  labor.  An  actual  illustration  of  the  value  of 
this  principle  is  found,  we  are  told  by  a  well-known  writer, 
in  the  Australian  state  of  Victoria,  where  the  upper  chamber 
of  the  legislature  is  made  up  mainly  of  the  representa- 
tives of  capital,  while  the  other  chamber  is  composed  prin- 
cipally of  the  representatives  of  labor.  This  is  the  result 
chiefly  of  a  restricted  suffrage  for  the  upper  house,  higher 
property  qualifications  for  membership  in  it,  and  the  non- 
payment of  its  members  for  their  services.^ 

Finally,  the  bicameral  system  affords  an  opportunity,  in 
states  having  the  federal  form  of  government,  of  giving 
representation  to  the  political  units  composing  the  federa- 
tion. In  order  to  maintain  the  proper  equilibrium  between 
the  component  members  and  the  federation  as  a  whole,  the 
former  ought  to  be  represented  in  one  chamber  of  the  legis- 
lature without  regard  to  population,  that  is,  represented  as 
distinct  political  organizations.^  This,  in  fact,  is  the  prin- 
ciple upon  which  the  legislatures  of  most  states  having  the 
federal  form  of  government  are  at  present  constructed. 

The  eighteenth  century  French  doctrine  that  the  bicameral 
system  is  incompatible  with  the  principle  of  the  unity  of 
sovereignty  will,  upon  examination,  be  seen  to  be  untenable.^ 
Division  of  the  legislative  body  into  two  chambers  does  not 
involve  a  division  of  the  sovereignty  of  the  state  any 
more  than  the  distribution  of  governmental  power  between 

*  Edward  Jenks,  "Government  of  Victoria"  (1891),  p.  379.  The  idea  of  allowing 
special  representation  to  the  interests  of  capital  and  labor  was  advocated  by  Guizot 
in  his  "D^mocratie  en  France."  There  are  in  every  society,  Guizot  observed, 
two  "principal  types  of  social  situation":  that  of  men  who  live  from  the  income  of 
their  property,  and  that  of  men  who  have  no  capital,  but  live  by  their  labor.  Each  of 
these  essential  and  eternal  elements  in  every  society  should  have  distinct  repre- 
sentation, without  which  one  will  be  sacrificed  to  the  other.  Quoted  by  Laveleye 
in  "Le  Gouvernement  dans  la  Democratic,"  vol.  II,  p.  7. 

^  Compare  Duguit,  "Droit  constitutionnel,"  sec.  56. 

'  On  this  point  see  Duguit,  "Droit  constitutionnel,"  p.  345 ;  and  Lieber,  "Ci\'iJ 
Liberty  and  Self-government,"  pp.  197  S. 


THE   BICAMERAL   SYSTEM  437 

legislative,  executive,  and  judicial  organs  means  a  division 
of  sovereignty.  So  long  as  the  concurrence  of  both  cham- 
bers is  necessary  to  legislate,  that  is,  so  long  as  legislation 
emanates  from  the  assembly  as  a  whole,  there  is  not  duality, 
but  unity.  Law  is  the  will  of  the  people,  observes  Labou- 
laye,  whatever  may  be  the  mode  employed  for  enacting  it.^ 
Where,  however,  the  structural  principle  of  both  chambers 
of  the  legislature  is  the  same,  much  of  the  value  of  the  bi- 
cameral system  is  lost.  If  the  two  chambers  are  identical 
in  constitution,  then  the  second  is  a  mere  duplication  of  the 
first;  and  the  advantages  of  the  additional  chamber  are 
questionable.  "If  the  two  houses  were  elected  for  the 
same  period  and  by  the  same  electors,"  observes  Lieber, 
"they  would  amount  in  practice  to  little  more  than  two 
committees  of  the  same  house;  but  we  want  two  bona  fide 
different  houses  representing  the  impulse  as  well  as  the 
continuity,  the  progress  and  the  conservatism,  the  onward 
zeal  and  the  retentive  element,  innovation,  and  adhesion, 
which  must  ever  form  integral  elements  of  all  civilization. 
One  house,  therefore,  ought  to  be  large;  the  other  com- 
paratively small,  and  elected  or  appointed  for  a  longer 
time."  ^  Some  writers  maintain  that  no  advantage  what- 
ever is  to  be  gained  by  the  bicameral  system  if  the  two 
chambers  are  identical  in  constitution.  In  such  a  case 
it  is,  says  Bluntschli,  like  employing  duplicate  organs  to 
do  the  same  thing.  Bluntschli  argues,  with  good  reason 
we  believe,  that  the  upper  chamber  ought  to  rest  on  a 
different  basis  from  the  lower  chamber,  that  it  ought,  to 
some  extent  at  least,  to  represent  special  classes  or  interests 
or  political  units  as  such  without  full  regard  to  population; 
while  the  lower  chamber  ought  to  represent  the  opinion  and 
interests  of  the  mass  of  population,  and  to  this  end  the 
representative  ought  to  be  chosen  by  the  whole  body  of 

*  Quoted  by  Laveleye  in  his  "Le  Gouvernement  dans  la  Democratic,"  vol.  II, 
p.  9. 

'  "Civil  Liberty  and  Self-government,"  p.  198. 


438  THE  LEGISLATIVE  DEPARTMENT 

the  citizens/  Judge  Story  was  of  the  same  opinion.  The 
division  of  the  legislature  into  two  branches,  he  declared, 
would  be  of  little  or  no  intrinsic  value  unless  the  organiza- 
tion was  such  that  each  house  could  operate  as  a  real  check 
upon  undue  and  rash  legislation.^ 

But  it  is  not  necessary  to  the  success  of  the  bicameral 
system  that  every  class  and  interest  in  the  community 
should  be  given  distinct  and  separate  representation. 
What  is  required  in  order  to  realize  the  full  value  of  the 
bicameral  principle  is  that  the  two  chambers  should  be 
differently  composed  and  should  rest  on  dissimilar  bases. 
The  members  of  one  chamber  ought  to  enjoy  longer  tenures, 
they  ought  to  represent  a  larger  constituency,  higher  mem- 
bership qualifications  ought  to  be  required  of  them,  and 
they  might  well  be  chosen  in  a  different  manner  and  by  a 
differently  constituted  electorate.^  Where  these  require- 
ments exist  there  will  always  be  one  chamber  smaller  in 
size  than  the  other,  possessing  a  higher  degree  of  experience 
and  perhaps  of  ability,  more  conservatism  of  spirit,  and 
representing  more  fully  the  higher  property  and  intellectual 
interests  of  the  state.  Thus  the  high  age  qualifications 
(the  attainment  of  the  fortieth  year)  required  of  senators 
in  Belgium,  France,  and  Italy  has  had  the  effect  of  securing 
more  experienced  statesmen  in  the  legislatures  of  those 
countries.  The  longer  tenure,  the  larger  constituency,  and 
the  method  of  indirect  election  for  members  of  the  United 
States  Senate  tend  to  secure  a  more  experienced,  more  con- 
servative, and,  on  the  whole,  an  abler  body  of  legislators  than 
is  found  in  the  House  of  Representatives.  The  same  is  true 
of  the  upper  chambers  of  the  Australian  Commonwealth, 
and  the  republics  of  Brazil,  Mexico,  and  Switzerland,  The 
hereditary  principle  which  prevails  almost  wholly  in  the 

*  "Allgemeines  Staatsrecht,"  bk.  II,  ch.  6. 
'  "Commentaries,"  vol.  I,  sec.  699. 

'Compare  Sidgwick,  "Elements  of  Politics,"  ch.  23.  See  also  Bluntschli, 
'•Allgemeines  Staatsrecht,"  bk.  II,  ch.  6,  on  the  constitution  of  upper  chambers. 


THE   BICAMERAL   SYSTEM  439 

structure  of  the  upper  chamber  in  Great  Britain  and  to  a 
less  degree  in  Austria,  Hungary,  and  Spain  diminishes 
rather  than  increases  the  efficiency  of  the  legislature;  yet 
under  restrictions  which  it  has  been  proposed  to  introduce 
into  the  English  system  the  principle  would  not  be  without 
its  advantages,  since  it  would  provide  a  means  of  introduc- 
ing into  the  legislature  a  class  of  educated  and  leisured  men 
who  have  had  exceptional  opportunities  for  acquiring  po- 
litical information  and  for  imbibing  the  result  of  political 
experience,  without  at  the  same  time  bringing  into  the  legis- 
lature large  numbers  of  men  who  add  little  or  no  strength. 
The  appointive  principle  which  prevails  in  Italy  for  the 
constitution  of  the  upper  chamber,  and  to  a  less  degree  in 
several  other  European  states,  is  out  of  harmony  with  mod- 
ern notions  of  representation,  yet  it  has  the  advantage  of 
insuring  a  place  in  the  legislature  for  distinguished  men 
who  have  held  public  office  and  also  for  men  who  have 
attained  eminence  in  science,  art,  and  the  learned  profes- 
sions/ 

Perhaps  the  ideal  mode  of  determining  the  membership  Proper 
of  the  upper  chamber  lies  in  a  combination  of  some  or  all  of  ^°°o^%f 
the  above  systems,  if  we  eliminate  the  Norwegian  method  the  Upper 
of  coaptation  and  the  British  hereditary  principle,  neither 
of  which   commends  itself   to   us.     A  certain   number  of 
members  of  whom  high  qualifications  are  required  might 
very  properly  be  elected  upon  the  basis  of  a  restricted  suf- 
frage from  the  larger  administrative  subdivisions  into  which 
the  state  is  divided ;   a  certain  number  might  be  elected  by 
the  local  governments,  such  as  the  provincial  legislatures  or 
municipal  councils;    a  limited  number  might  be  appointed 
by  the  excutive  from  those  who  have  achieved  eminence 
in  the  state  or  who  have  held  certain  high  offices,  etc. 

With  regard  to  the  constitution  of  the  lower  house,  there 
Is  a  substantial  unanimity  of  opinion  and  of  practice  that 

^  On  the  value  of  appointment  as  a  source  of  membership  in  the  upper  chamber, 
see  Sidgwick,  op.  cit.,  p.  476. 


Chamber 


440  THE   LEGISLATIVE   DEPARTMENT 

it  should  rest  upon  a  popular  basis,  that  is,  its  members 
should  be  chosen  by  direct  election,  upon  the  basis  of  a 
wide  suffrage  and  for  short  terms.  Finally,  the  experience 
of  the  past  demonstrates  the  wisdom  of  the  principle  of 
inequality  of  powers  as  between  the  two  chambers.  Nearly 
everywhere  the  upper  chamber  is  intrusted  with  a  share, 
negative  or  positive,  in  the  administration  of  the  govern- 
ment, often  a  certain  participation  in  the  control  of  the 
foreign  policy  of  the  state,  and  sometimes  is  vested  with 
important  judicial  functions.  This  has  a  tendency  to  in- 
crease the  dignity  and  prestige  of  membership  therein  and 
thus  secure  legislators  of  higher  ability  and  added  conserv- 
atism. The  scheme  of  partial  renewal  common  in  the 
organization  of  the  upper  chambers  is  likewise  a  valuable 
principle,  in  that  it  tends  to  secure  the  element  of  experi- 
ence and  preserve  continuity  of  membership. 

II.    METHODS   OF   APPORTIONMENT 

Repre-  Several  methods  of  apportioning  or  distributing  legisla- 

of  Political  tive  representatives  have  been  followed.     One  is  to  distrib- 
Units  ^^Q  them  among  the  political  divisions  of  the  state  without 

regard  to  their  population,  or  at  least  without  exclusive 
regard  to  it.  In  all  the  important  federal  unions  except 
the  German  Empire  and  the  Dominion  of  Canada  the  prin- 
ciple of  equality  of  representation  among  the  component 
members  prevails  in  the  construction  of  the  upper  chambers. 
In  the  German  Bundesrath  the  number  of  votes  to  which 
each  state  of  the  empire  is  entitled  varies  from  one  to 
seventeen;  and  in  the  Canadian  House  of  Lords  the  num- 
ber varies  from  four  to  twenty-four,  the  latter  being  the 
number  allowed  the  province  of  Quebec.  In  the  French 
Republic  the  number  of  senators  from  each  department 
varies  from  one  to  ten. 

Another   method    of   distribution    is    to   apportion    the 
representatives  among  the  political  divisions  of   the  state 


METHODS   OF   APPORTIONMENT  441 

with  some  regard  to  the  amount  or  value  of  property  in  Repre- 
each.  The  chief  merit  of  such  a  method  is  that  it  takes  of%^op° 
into  consideration  one  of  the  important  elements  which  ^^y 
enter  into  the  physical  make-up  of  the  state.  The  doctrine 
that  taxation  should  go  hand  in  hand  with  representation 
has  long  been  a  cherished  political  theory  of  the  people  of 
America  and  England,  and  perhaps  no  better  system  could 
be  devised  for  protecting  the  rights  of  property  than  by  giv- 
ing it  a  share  of  representation  in  the  legislative  branch. 
For  other  reasons,  however,  it  has  not  commended  itself 
to  the  people  of  democratic  states;  and  outside  of  a  few 
European  monarchies  where  property  is  taken  into  consid- 
eration to  some  extent  in  organizing  representation  in  the 
upper  chambers,  the  system  no  longer  prevails.  In  no 
state  is  property  to-day  the  sole  basis  of  representation  in 
either  chamber,  and  the  few  remaining  traces  of  the  prin- 
ciple that  have  survived  the  nineteenth  century  will  doubt- 
less disappear  in  the  course  of  time. 

Another  principle  is  that  which  bases  representation  on  Repre- 
the  total  population,  citizens  and  aliens,  male  and  female,  ba°ed*on 
enfranchised  and  unenfranchised  alike,  and  not  on  the  num-  Popuia- 
ber  of  voters  merely.     This  is  now  the  almost  universal 
rule   governing   the    apportionment   of   representation    in 
lower  chambers,  and  in  some  states  it  is  also  the  basis  of 
representation  in   the  upper  chambers.     It  possesses  the 
element  of  simplicity  and  uniformity  and  is  regarded  as 
being  more  in  harmony  with  present  day  notions  of  repre- 
sentative government.^     The  ratio  of  representation  varies 
widely  among   different  states.     For  the  national   House 
of   Representatives   in   the   United   States   it  is  now    one 
representative  for  every  193,000  of  the  population.^     In  the 

'  Compare  Story,  "Commentaries,"  vol.  I,  sees.  631-635;  and  Esmein,  "Droit 
constitutionnel,"  p.  207. 

*  The  number  of  members  from  each  state  in  the  national  House  of  Representa- 
tives varies  from  one  in  Delaware,  Idaho,  Montana,  Nevada,  Utah,  and  Wyoming 
to  thirty-seven,  the  number  apportioned  to  the  state  of  New  York. 


442  THE   LEGISLATIVE   DEPARTMENT 

United  Kingdom  of  Great  Britain  and  Ireland  it  is  one 
member  for  every  62,700  of  the  population;  in  Belgium, 
one  member  for  every  40,000;  in  Brazil,  one  member  for 
every  70,000;  in  Mexico,  one  for  every  40,000;  in  Switzer- 
land, one  for  every  20,000;  in  France,  one  for  every  100,000; 
in  the  German  Empire,  one  for  every  100,000;  in  Canada, 
one  for  every  22,600  of  the  population.  The  same  variety 
prevails  among  the  individual  states  composing  the  federal 
republic  of  the  United  States,  where  the  principle  of  appor- 
tionment on  the  basis  of  population  is  generally  the  rule 
for  the  constitution  of  both  the  upper  and  lower  chambers. 
Perhaps  an  ideal  system  would  be  one  which  would  take  into 
consideration  the  elements  of  population,  geographical  area, 
and  property  combined,  if  there  were  any  criteria  for  de- 
termining the  relative  weight  which  should  be  given  to  each 
of  these  elements.  As  yet  no  satisfactory  scheme  of  this 
kind  has  been  devised/ 

III.    METHOD   OF   CHOICE 

Electoral  For  Convenience  in  choosing  representatives  it  is  custom- 
ary to  divide  the  state  into  electoral  circumscriptions  or 
districts.  The  entire  body  of  representatives  might  be 
chosen  from  the  state  at  large  on  a  general  ticket,  each 
elector  being  allowed  to  cast  a  vote  for  the  entire  number; 
but  in  states  of  considerable  geographical  area,  where 
several  hundred  members  are  to  be  elected,  such  a  method 
would  obviously  be  impracticable.  The  time  and  effort 
involved  in  voting  such  a  ticket  would  be  very  great;  and, 

'  The  French  constitution  of  1791  (title  III,  sec.  i)  attempted  a  scheme  of  this 
kind.  It  apportioned  the  745  representatives  of  the  legislative  body  among  the  83 
departments  "according  to  the  three  proportions  of  territory,  population,  and  tax," 
247  being  "accredited"  to  territory,  24910  population,  and  249  to  the  direct  tax. 
See  Anderson,  "Constitutions  and  Documents  of  France,"  p.  65.  But  this  scheme 
was  abolished  by  the  constitution  of  1793,  which  declared  population  to  be  the  sole 
basis  of  representation ;  and  this  principle  was  continued  by  the  constitutions  of  1795 
and  1848.  The  latter  principle,  says  Esmein,  is  the  correct  one.  "Droit  consti- 
tutionnel,"  p.  206. 


METHOD    OF   CHOICE  443 

what  is  of  more  importance,  the  ignorance  of  the  elector 
concerning  the  candidates  from  distant  parts  of  the  state 
would  be  so  great  that  an  election  under  such  circumstances 
would  be  largely  a  farce.  The  practice  of  all  states,  there- 
fore, is  to  divide  their  territory  into  electoral  districts  or  to 
utilize  for  this  purpose  the  political  subdivisions  already  in 
existence. 

In  constituting  electoral  districts  two  methods  are  em- 
ployed :  one  is  to  parcel  the  state  into  as  many  districts  as 
there  are  representatives  to  be  chosen  and  allow  a  single 
member  to  be  chosen  from  each;  the  other  is  to  create  a 
smaller  number  of  districts,  from  each  of  which  a  number 
of  representatives  is  chosen  on  the  same  ticket.  The 
former  is  known  as  the  single  member  district  plan;  the 
latter,  as  the  general  ticket  method.  Each  has  been  em- 
ployed by  most  states  at  different  times  in  their  history, 
though  nearly  all  have  come  at  last  to  the  single  member 
district  method.  In  the  United  States,  for  a  long  time,  rep- 
resentatives in  Congress  were  chosen  from  the  state  at  large, 
each  elector  being  allowed  to  cast  a  vote  for  the  entire 
ticket;  but  the  objections  to  the  method  were  so  serious 
that  Congress,  in  1842,  enacted  that  thereafter  they  should 
be  chosen  by  districts  containing  as  nearly  as  possible  equal 
populations,  and  this  rule  still  prevails. 

In  Great  Britain  the  single  member  district  method 
has  long  prevailed,  though  from  1867  to  1885  a  few  of 
the  more  populous  boroughs  were  permitted  to  choose 
their  members  by  general  ticket.  These  were  the  so-called 
"three-cornered"  constituencies,  thirteen  in  number,  in 
which  the  system  of  proportional  representation  was 
applied.  The  method  first  employed  in  the  French  Re- 
public for  choosing  members  of  the  Chamber  of  Deputies 
was  the  single  district  system  {scrutin  d' arrondissement) ; 
but  in  1885  the  general  ticket  method  was  adopted,  under 
which  all  the  deputies  apportioned  to  each  department  were 
elected  from  the  department  at  large  by  general  ticket 


444 


THE    LEGISLATIVE   DEPARTMENT 


{scrutin  de  liste) .  In  1889,  however,  the  single  member  dis- 
trict method  was  reverted  to,  and  it  is  still  in  force.  ItaHan 
practice  has  varied  in  a  manner  very  similar  to  that  of  France, 
but  since  1891  the  general  ticket  method  has  prevailed. 

The  general  ticket  method  is  employed  in  the  states 
composing  the  Commonwealth  of  Australia  (Queensland 
excepted),  for  choosing  the  six  senators  to  which  each  is 
entitled  in  the  Commonwealth  Parliament,  as  well  as  in 
those  countries  where  schemes  of  proportional  representa- 
tion exist,  notably  in  Belgium,  Denmark,  Cuba,  Norway, 
Portugal,  Sweden,  certain  districts  in  Brazil,  in  Italy  for 
provincial  and  municipal  elections,  in  certain  parts  of 
Spain,  in  Japan,  in  some  of  the  Swiss  cantons,  in  Iceland, 
Tasmania,  and  in  other  states. 

In  the  states  of  the  American  Union  the  district  method 
of  choosing  representatives  is  the  rule,  though  there  are  a 
few  exceptions,^  Likewise  in  the  choice  of  members  of 
municipal  councils  the  single  district  or  ward  method 
generally  prevails,  especially  where  the  single-chambered 
council  exists,  though  there  are  some  notable  exceptions.^ 
In  some  municipalities  a  mixed  system  is  employed,  ac- 
cording to  which  a  certain  number  of  members,  in  addi- 
tion to  the  ward  representatives,  are  chosen  from  the  city 
at  large  on  general  ticket.^ 

The  chief  advantage  of  the  single  member  district  method 
is  its  simplicity  and  convenience.  Where  the  country  is 
divided  into  as  many  electoral  circumscriptions  as  there 
are  representatives  to  be  chosen,  the  task  of  the  voter 

*  See  Reinsch,  "American  State  Legislatures,"  pp.  197-200. 

'  The  general  ticket  system  is  in  use  in  St.  Louis,  Buffalo,  Louisville,  St.  Paul,  and 
in  the  cities  of  Massachusetts  and  Kentucky  for  the  election  of  municipal  councils. 
See  Fairlie,  "Essays  on  Municipal  Administration,"  p.  131. 

'  Thus  in  San  Francisco  the  board  of  supervisors,  the  Cook  County,  Illinois, 
board  of  commissioners,  and  also  the  city  council  of  Memphis  are  chosen  from  the 
city  at  large  instead  of  by  wards.  In  various  cities  the  board  of  education  is 
chosen  in  the  same  vray.  On  the  general  ticket  system  see  Commons,  "Proper' 
tional  Representation,"  ch.  4. 


METHOD    OF   CHOICE  445 

in  each  district  is  restricted  to  the  simple  duty  of  cast- 
ing a  ballot  for  one  representative.  Owing  to  the  neces- 
sarily restricted  area  of  the  electoral  district  under  this 
system,  the  chances  are  considerable  that  the  candidate 
will  be  better  known  to  the  voters  than  would  be  possible 
under  the  general  ticket  system,  which  requires  larger  dis- 
tricts,^ and  that  he  will  in  turn  be  more  familiar  with  the 
needs  and  conditions  of  the  district  which  he  is  chosen  to 
represent.  Another  advantage  of  the  district  method  is 
that  it  tends  to  secure  representation  to  the  minority  party 
in  the  state,  city,  or  province,  as  a  whole.  Obviously,  if  all 
the  representatives  are  chosen  from  the  state  at  large  on  a 
general  ticket,  the  party  having  a  bare  majority  will  elect 
all  and  the  minority  none.  Thus  in  the  United  States,  as 
long  as  representatives  in  Congress  were  chosen  from  the 
state  at  large,  the  majority  party  in  each  usually  elected 
the  entire  congressional  delegation;  whereas  if  the  district 
ticket  method  had  prevailed,  some  districts  in  states  not 
predominantly  in  control  of  one  party  or  the  other  would 
have  chosen  representatives  belonging  to  the  minority 
party.  The  injustice  of  such  a  scheme  led  to  the  substitu- 
tion of  the  district  method,  as  has  been  said,  by  an  act  of 
Congress  in  1842. 

The  same  inequality  is  complained  of  with  regard  to 
the  general  ticket  method  of  choosing  presidential  electors 
in  the  United  States  to-day,  a  system  which  usually  gives 

'  Among  the  advocates  of  the  single  member  district  method  are  Montesquieu 
("Esprit  des  Lois,"  English  ed.  by  Prichard,  vol.  I,  p.  166);  Sidgwick  ("Elements 
of  Politics,"  p.  396);  Bluntschli  ("Politik,"  p.  444);  Esmein  ("Droit  constitu- 
tionnel,"p.  205);  Brougham  ("The  British  Constitution,"  Works,  vol.  XI,  p.  73); 
Bradford  ("  Lessons  of  Popular  Government,"  vol.  II,  p. 168).  Where  several  candi- 
dates are  chosen  from  the  same  district,  says  Bradford,  the  voter  "has  to  decide 
upon  their  relative  merits  without  even  the  party  guide,  a  task  for  which  he  is  unfitted, 
and  which,  unless  he  has  some  special  object  to  gain,  he  will  renounce  in  disgust." 
In  Boston,  where  the  twelve  aldermen  are  chosen  at  large,  each  elector  being  allowed 
to  vote  for  seven,  "  it  is  ludicrous,"  he  says,  "to  see  the  helplessness  with  which  voters, 
even  among  the  well-to-do  and  educated,  gaze  at  this  list  of  twelve  names,  which  to 
them  mean  absolutely  nothing  else." 


446  THE   LEGISLATIVE   DEPARTMENT 

the  predominant  party  in  each  state  all  the  presidential 
electors  to  which  the  state  is  entitled,  though  the  numer- 
ical preponderance  of  the  party  in  the  majority  may  be 
quite  insignificant/ 
objec-  The  objections  to  the  single  member  district  method  are: 

tcTthe  first,  that  it  narrows  the  range  of  choice  and  often  leads 
District  to  the  election  of  inferior  men.  This  is  notably  the  case 
in  the  large  cities  where  the  ward  system  of  choosing  alder- 
men is  almost  universal.  Experience  abundantly  proves 
that  in  cities  where  such  a  system  prevails  not  only  infe- 
rior, but  often  corrupt,  representatives  are  chosen.  In  the 
second  place,  the  district  system  leads  to  the  choice  of  men 
who  are  apt  to  represent  local  interests  rather  than  men 
who  represent  the  interests  of  the  country  as  a  whole,  and 
who  therefore  are  likely  to  take  a  narrow  and  particular- 
istic view  of  public  questions  instead  of  a  broad  national 
view.  The  experience  of  both  France  and  Italy  with  the 
scrutin  d' arrondissement  system  of  choosing  deputies  clearly 
established  the  truth  of  this  statement.^  In  the  case  of 
Italy  it  was  finally  abandoned  for  the  general  ticket  method, 
coupled  with  provision  for  a  system  of  proportional  repre- 
sentation. The  district  system  encourages  the  view  that 
the  representative  is  the  mandataire  of  his  constituency 
rather  than  of  the  country;  that,  in  short,  he  is  commis- 
sioned to  represent  a  part  rather  than  the  whole  of  the 
state .^     Moreover,  the  custom  which  regards  the  legislator 

*  See  Dougherty,  "The  Electoral  System  in  the  United  States,"  ch.  i. 

*  Cf.  Lowell,  "Government  and  Parties  in  Continental  Europe,"  vol.  I,  pp.  i6, 
158;  Duguit,  "Droit  constitutionnel,"  p.  355,  and  Benoist,  "Crise  de  I'Etat 
moderne,"  pp.  56-64. 

*  Compare  Duguit,  "  Droit  constitutionnel,"  p.  355  ;  and  Esmein,  "Droit  consti- 
tutionnel," p.  207 ;  also  an  article  by  M.  Goblet  in  the  "Revue  politique  et  parlia- 
mentaire,"  1905,  where  it  is  said  that  the  district  system  abases  tlie  intellectual  char- 
acter of  the  legislature  and  substitutes  consideration  of  particular  interests  for  the 
general  interests.  Compare  on  the  contrary  the  remarks  of  Mr.  A.  J.  Balfour  in  the 
House  of  Commons,  April  1 3, 1 894 :  "  I  have  always  been  of  the  opinion  that  the  whole 
basis  of  representation  in  this  House  is  a  local  basis,  and  that  the  various  localities, 
when  they  send  representatives  here,  while  conscious,  of  course,  of  the  imperial  obli- 


DIRECT  VERSUS  INDIRECT  ELECTION  447 

as  the  representative  of  a  particular  locality  is  respon- 
sible for  the  election  of  men  whose  energies  are  likely  to 
be  engrossed  with  the  pressure  of  petty  local  influences, 
and  therefore  often  deprives  the  state  of  the  services 
of  able  statesmen  who  would  be  willing  to  serve  in  the 
legislature  could  they  be  freed  from  such  influences  and 
be  regarded  strictly  as  representatives  of  the  country 
at  large.  In  the  third  place,  the  district  system  increases 
powerfully  the  temptation  of  legislative  majorities  to 
"gerrymander"  the  state,  that  is,  to  construct  the  electoral 
districts  in  such  a  way  as  to  give  the  majority  party  more 
representatives  than  its  voting  strength  entitles  it  to/ 

It  would  seem  that  a  combination  of  the  general  ticket  The 
and  district  methods  by  which  a  certain  number  of  represen-  sy^teoi 
tatives  would  be  chosen  according  to  each  method  possesses 
decided  advantages  over  either  by  itself.     It  would  secure 
all  the  principal  advantages  of  both  and  at  the  same  time 
diminish  the  manifest  disadvantages  of  the  district  method.^ 

IV.     DIRECT   VERSUS   INDIRECT   ELECTION 

As  a  means  of  diminishing  the  evils  of  an  extended  suf-  The 
frage  some  states  have  employed  a  system  of  indirect  or  of^indire 
double  elections  for  choosing  representatives  and  sometimes  Election 

gations  resting  upon  them,  must  vote  as  localities  and  have  regard  to  the  interest  of 
localities."     "  Parliamentary  Debates,"  4th  Series,  vol.  XXIV,  p.  386. 

'  See  Commons,  "Proportional  Representation,"  ch.  3,  for  a  discussion  of  the 
evils  of  the  district  system  vi'ith  particular  reference  to  the  practice  of  gerrymander- 
ing; see  also  Reinsch,  "American  Legislatures,"  pp.  200-209. 

"The  aim  of  gerrymandering,"  says  Bryce,  "is  to  lay  out  the  districts  so  as  to  se- 
cure in  the  greatest  possible  number  of  them  a  majority  for  the  party  v/hich  conducts 
the  operation.  This  is  done  sometimes  by  throwing  the  greatest  possible  number  of 
votes  into  a  district  which  is  anyhow  certain  to  be  hostile,  sometimes  by  adding  to  a 
district  where  parties  are  equally  divided  some  place  in  which  the  majority  of 
friendly  voters  is  sufficient  to  turn  the  scale."  "American  Commonwealth,"  ch.  13. 

'  The  "  mixed"  system  is  sometimes  applied  in  choosing  the  members  of  munici- 
pal councils,  notably  in  Ohio,  Indiana,  and  Iowa.  It  has  also  been  employed  for 
choosing  the  delegates  to  constitutional  conventions,  for  example  in  New  York 
State  in  1894,  where  a  certain  number  of  the  delegates  were  chosen  from  the  state  at 
large,  the  rest  from  districts. 


448  THE    LEGISLATIVE   DEPARTMENT 

also  for  other  public  functionaries.  According  to  this  method 
the  whole  body  of  voters  in  the  electoral  district  choose  a 
smaller  number  of  intermediate  electors,  and  these  in  turn 
elect  immediately  the  representatives  or  other  officers  to  be 
chosen.  Under  the  French  constitution  of  1791,  for  ex- 
ample, the  members  of  the  National  Assembly,  and  also  all 
magistrates  and  administrators  of  the  departments  and 
districts,  were  chosen  in  this  manner,^  The  system  was 
continued  for  the  election  of  certain  administrative  officers 
under  the  constitution  of  1793  (art.  8),  for  the  election  of 
representatives  under  the  constitution  of  1795  (art.  41),  was 
retained  after  the  restoration,  18 14,  and  was  not  finally 
abandoned  until  1830.  Indeed,  senators  of  the  Republic 
are  still  chosen  by  indirect  election,  that  is,  they  are  chosen 
by  electoral  colleges  in  the  several  departments.  The 
method  of  indirect  election  was  introduced  into  the  United 
States  constitution  for  choosing  the  President  and  Vice 
President,  though  the  election  has  in  practice  come  to  be 
direct.  The  choice  of  members  of  the  Prussian  Landtag 
is  likewise  made  by  bodies  of  intermediate  electors  chosen 
by  the  primary  voters  grouped  according  to  a  three-class 
system  of  suffrage  to  be  described  hereafter. 
Advan-  The  principal  argument  in  favor  of  the  system  of  indirect 

the^sys-  clcctiou  is  that  it  eliminates  to  some  extent,  as  has  been 
tem  of  said,  the  evils  of  universal  suffrage  by  confining  the  ulti- 
Eiection  mate  choice  to  a  body  of  select  persons  possessing  a  higher 
average  of  ability  and  necessarily  feeling  a  keener  sense  of 
responsibility.  Moreover,  it  tends  to  diminish  the  evils  of 
party  passion  and  struggle  by  removing  the  object  of  the 
popular  choice  one  degree  and  confining  the  function  of 
the  electorate  as  a  whole  to  the  choice  of  those  upon  whom 
the  ultimate  responsibility  must  rest.  "  This  contrivance," 
says  John  Stuart  Mill,  "was  probably  intended  as  a  slight 
impediment  to  the  full    sweep  of  popular  feeling;    giving 

'  Constitution  of   1791,  title  III,  ch.  i,  sees,  i,  2.      See  also  Lord  Brougham's 
"British  Constitution,"  p.  69. 


DIRECT   VERSUS   INDIRECT   ELECTION  449 

the  suffrage  and  with  it  the  complete  ultimate  power  to 
the  many,  but  compelling  them  to  exercise  it  through  the 
agency  of  a  comparatively  few,  who,  it  was  supposed, 
would  be  less  moved  than  the  Demos  by  the  gust  of  pop- 
ular passion;  and,  as  the  electors,  being  already  a  select 
body,  might  be  expected  to  exceed  in  intellect  and  character 
the  common  level  of  their  constituents,  the  choice  made  by 
them  was  thought  likely  to  be  more  careful  and  enlightened 
and  would  in  any  case  be  made  under  the  greater  feeling  of 
responsibility  than  election  by  the  masses  themselves."  ^ 
But  experience  with  the  indirect  system  of  election  has 
never  worked  out  in  practice  satisfactorily.  In  France  it 
failed  to  meet  the  expectations  of  its  authors  and  was 
abandoned  for  the  system  of  direct  election,  and  this  has 
been  the  experience  of  most  states  where  it  has  been  tried .^ 

Where  the  party  system  is  well  developed,  the  indirect  objections 
scheme  is  likely  to  degenerate  into  a  cumbrous  formality,   5°^*^ 
since  the  intermediate  electors  will  be  chosen  under  party  of  indirect 
pledges  to  vote  for  particular  candidates.     This  has  been 
the  history  of  the  indirect  system  for  choosing  the  Presi- 
dent and  Vice  President  of  the  United  States,  where  the 
presidential  electors  have  become  mere  party  puppets,  with- 
out judgment  or  freedom  of  action  in  performing  the  high 
functions  that  were  intended  to  be  exercised  by  them,^  and 

'"Representative  Government,"  ch.  9,  p.  180.  "Election  in  two  stages  has 
certainly  a  prima  facie  tendency  to  improve  the  quality  of  the  legislature,"  says 
Sidgwick,  "if  it  does  not  become  a  formality,  and  if  both  parts  of  the  process  are 
performed  with  independence  and  honesty  of  purpose ;  since  the  competence  of 
the  elected  electors  may  be  expected  to  be  on  the  average  greater  than  that  of  the 
citizens  who  elect  them,  and  their  sense  of  responsibility  stronger."  "Elements 
of  Politics,"  p.  403. 

For  a  defense  of  the  indirect  system,  see  Plank,  "  The  Commonwealth  Recon- 
structed," and  Laveleye,  "Le  Gouvernement  dans  laDemocratie,"  vol.  II,  bk.  IX. 
ch.  6.  Laveleye  argues  that  the  system  will  secure  representatives  of  higher  char- 
acter and  ability  because  the  choice  will  be  made  after  discussion  and  reflection  on 
the  part  of  the  electors. 

^  Compare  Duguit,  "Droit  constitutionnel,"  pp.  350-351. 

'  See  on  this  point  Dougherty,  "The  Electoral  System  of  the  United  States," 
ch.  10. 

POL.  SCI.  —  29 


450  THE   LEGISLATIVE   DEPARTMENT 

where  the  intermediate  electors  are  reduced  to  the  position 
of  party  puppets,  they  are  certain  to  be  persons  of  less 
weight,  as  Lord  Brougham  has  observed,  because  their 
office  is  only  occasional  and  temporary  and  hence  their 
sense  of  responsibility  is  weakened.*  "  It  may  be  safely 
asserted,"  said  Francis  Lieber,  "  that  the  Anglican  people 
are  distinctly  in  favor  of  simple  elections."  "Elections  by 
middlemen  deprive  the  representation  of  its  directness  in 
responsibility  and  temper;  the  first  electors  lose  their 
interest,  because  they  do  not  know  what  their  action  may 
end  in;  no  distinct  candidates  can  be  before  the  con- 
stituents and  be  canvassed  by  them,  and  inasmuch  as  the 
number  of  electors  is  a  small  one,  intrigue  is  made  easy."  ^ 
Manifestly,  whatever  may  be  the  advantages  of  indirect 
election,  a  suffrage  which  limits  the  power  of  the  voter 
merely  to  the  selection  of  those  who  are  to  choose  instead 
of  those  who  are  to  represent  him  will  not  satisfy  the 
masses  in  the  present  state  of  the  world's  opinion  concern- 
ing the  nature  of  representative  government.^  The  idea 
is  out  of  harmony  with  the  spirit  of  modern  democracy. 
One  of  the  chief  merits  of  popular  government  comes  from 
the  fact  that  it  stimulates  interest  in  public  affairs  and 
increases  the  political  intelligence  of  the  masses.  If  a 
middleman  is  interposed  between  the  voter  and  the 
object  of  his  choice,  his  interest  is  necessarily  diminished 
and  his  opportunity  for  political  education  weakened.*  If 
a  person  is  fit  to  choose  an  elector,  says  Lord  Brougham, 
he  is  fit  to  choose  a  representative.     He  may,  of  course, 

'  "The  British  Constitution,"  p.  70. 

*"  Civil  Liberty  and  Self-government,"  p.  174.  See  also  Story,  "  Commen- 
taries,"  vol.  I,  sec.  576. 

'  "  I  believe, "  says  Lieber,  "  that  neither  Americans  nor  Englishmen  would  think 
the  franchise  worth  having  were  double  elections  introduced."  "Civil  Liberty  and 
Self-government,"  p.  174. 

*  See  on  this  point  Bluntschli,  "Politik,"  p.  455;  also  his  "Allgemeines  Staats- 
recht,"  p.  69.  For  a  criticism  of  the  indirect  system  by  a  French  scholar,  see 
Benoist,  "Crise  de  I'Etat  moderne,"  pp.  82-98. 


QUALIFICATIONS    AND    TERM    OF    REPRESENTATIVES     451 

be  unfit  to  vote  wisely  upon  a  measure  or  a  question  of 
public  policy  and  still  be  fit  to  choose  some  one  to  act 
for  him  in  such  matters/  Finally,  the  indirect  system 
tends  to  increase  the  evils  of  bribery,  because  the  ultimate 
electoral  body  is  much  less  numerous  and  consequently 
more  easily  reached  by  corrupt  influences  than  the  whole 
mass  of  voters. 

V.     QUALIFICATIONS   AND   TERM    OF   THE   REPRESENTATIVE 

The  constitutions  of  all  states  prescribe  certain  quali-  Quaiifica- 
fications  for  eligibility  to  the  ofiice  of  representative,  and  ci^qulji- 
some  expressly  lay  down  a  number  of  disqualifications,  fications 
The  qualifications  relate  for  the  most  part  to  citizenship, 
age,  and  residence;    the  disqualifications  relate  mainly  to 
the  incompatibility  of  the  legislative  function  with  that 
of  public  ofiice.     The  propriety  of  excluding  aliens  from  Citizen- 
membership   in   the  legislative  body  is  universally  recog-  ^^^^ 
nized,  for   the  reason   that   aliens,    owing   no   permanent 
allegiance  to  the  state  and  having  perhaps  only  a  transient 
interest  in  its  welfare,  cannot  be  expected  to  possess  the 
requisite  qualifications  for  participating  in  its  government. 
Moreover,  their   presence  in  the  legislature  would   afi"ord 
a  possible  means  through  which  the   mischiefs  of  foreign 
influence  might  find  their  way  into  the  public  councils.^ 

Practically  all  constitutions  require  of  the  representative  Age 
the  attainment  of  a  certain  age,  for  the  reason  that  the  ex- 
perience and  knowledge  necessary  to  a  successful  discharge 
of  legislative  duties  are  not  likely  to  be  possessed  by  minors. 
Some  states,  like  Great  Britain,  require  merely  the  attain- 
ment of  the  majority  —  twenty-one  years  of  age;  most 
states,  however,  insist  on  a  higher  age,  twenty-five  for  the 
lower  chamber,  thirty  for  the  upper,  while  some  require 

*  "The  British  Constitution,"  p.  70. 

^  Cf.  Story,  "Commentaries,"  vol.  I,  sec.  618;  also  "The  Federalist,"  No.  62. 
In  Great  Britain  formerly  a  naturalized  subject  was  ineligible  to  membership  in 
the  House  of  Commons,  but  this  disqualification  no  longer  exists, 


452  THE   LEGISLATIVE    DEPARTMENT 

the  attainment  of  a  greater  age.  Thus  Belgium,  France, 
and  Italy  require  the  attainment  of  forty  years  for  mem- 
bership in  the  upper  chamber,  and  thirty  years  for  mem- 
bership in  the  lower  chamber.  A  few,  like  Denmark,  make 
no  distinction  between  the  age  requirements  for  eligibility 
to  the  two  chambers.* 
Residence  Residence  in  the  district  which  the  member  represents 
is  required  by  positive  law  or  custom  in  many  states. 
In  the  United  States  the  representative  in  Congress  is 
required  by  the  constitution  to  be  an  inhabitant  of  the 
state,  but  neither  the  constitution  nor  the  statutes  require 
that  he  shall  be  a  resident  of  the  district.  Nevertheless,  a 
custom  so  strong  and  universal  as  to  possess  almost  the 
force  of  positive  law  requires  that  he  shall  be  a  resident 
of  the  district,  and  this  rule  has  rarely  been  disregarded  in 
practice.  The  popular  notion  is  that  an  actual  resident 
will  feel  a  deeper  concern  and  possess  a  more  intimate 
knowledge  of  the  needs  and  conditions  of  his  constituents 
than  a  stranger  would.  In  England,  formerly,  residence 
in  the  district  was  required  by  law;  but  for  a  long  time  the 
rule  was  systematically  ignored,  and  the  statute  requiring 
it  was  repealed  during  the  reign  of  George  III.  "It  was 
found,"  says  Judge  Story,  "that  boroughs  and  cities  were 
often  better  represented  by  men  of  eminence  and  known 
patriotism,  who  were  strangers  to  them,  than  by  those 
chosen  from  their  own  vicinage."  ^  The  election  of  non- 
residents to  represent  constituencies  to  which  they  are  to 
all  intents  and  purposes  strangers  is  an  occurrence  so 
common  in  England  that  it  has  come  to  be  almost  as  much 
the  rule  as  the  exception.     There  has  been  no  Parliament 

*  Story  observes  that  "all  just  reasoning"  is  against  the  view  that  the  mere 
attainment  of  the  twenty-first  year  is  a  proper  age  qualification  for  membership  in 
the  legislative  body  ("  Commentaries,"  sec.  617).  But  compare  Bluntschli  ("  Allge- 
meines  Staatsrecht,"  bk.  II,  ch.  5),  who  points  out  that  the  English  statesmen  Pitt, 
Burke,  Fox,  Grey,  Canning,  and  Lord  John  Russell  were  all  in  Parliament  at  the 
age  of  twenty,  as  was  also  true  of  the  Hungarian  statesman  Francis  Deak. 

*  "Commentaries,"  vol.  I,  sec.  619. 


QUALIFICATIONS   AND   TERM   OF   REPRESENTATIVES    453 

for  many  years  which  has  not  contained  a  large  number  of 
members  who  represented  districts  in  which  they  were 
not  residents.  The  EngHsh  practice  not  only  has  the  ef-  EvHs  of 
feet  of  securing  the  election  of  representatives  who  are  free  ^enS^Re- 
f rom  the  tyranny  of  petty  local  interests  and  who  are  likely  quirement 
to  take  broad  national  views  of  public  questions,  but  it 
affords  a  means  of  bringing  into  and  retaining  in  public 
life  able  statesmen  who  otherwise  would  be  unable  to 
obtain  seats  in  Parliament.  Some  of  the  most  distinguished 
leaders  in  English  public  life  to-day  would  now  be  in  re- 
tirement were  the  residence  requirement  in  force. ^  In  the 
United  States,  where  the  opposite  practice  prevails,  the 
country  has,  as  a  consequence,  been  deprived  of  the  services 
of  some  of  its  ablest  and  most  experienced  statesmen.^ 
James  Bryce  thus  criticises  the  American  custom  of  limit- 
ing the  choice  of  representatives  to  residents  of  the  dis- 
trict: "The  mischief  is  twofold.  Inferior  men  are  returned, 
because  there  are  many  parts  of  the  country  which  do  not 
produce  statesmen,  where  nobody,  or  at  any  rate  nobody 
desiring  to  enter  Congress,  is  to  be  found  above  a  moder- 
ate level  of  political  capacity ;  and  men  of  marked  ability 
and  zeal  are  prevented  from  forcing  their  way  in.  Such 
men  are  produced  chiefly  in  the  great  cities  of  the  older 
states.  There  is  not  room  enough  there  for  all  of  them,  but 
no  other  doors  to  Congress  are  open.  Boston,  New  York, 
Philadelphia,  and  Baltimore  could  furnish  eight  times 
as  many  good  members  as  there  are  seats  in  these  cities. 
As  such  men  cannot  enter  from  their  place  of  residence, 
they  do  not  enter  at  all,  and  the  nation  is  deprived  of  the 

*  Two  very  recent  examples  of  the  working  of  the  English  rule  were  the  election  of 
Ex-Premier  A.  J.  Balfour  in  1905  by  a  London  district  after  he  had  been  defeated  in 
his  home  district  of  Manchester;  and  the  election  in  1908  of  Winston  Churchill,  a 
member  of  the  cabinet,  by  another  constituency  after  his  defeat  in  the  district  of 
which  he  was  a  resident. 

^  In  this  way  the  Democrats  lost  the  services  of  their  leader,  William  R.  Morri- 
son, and  the  Republicans  their  leader,  William  McKinley,  in  1890.  Compare 
Commons,  "Proportional  Representation,"  pp.  41-42. 


454 


THE    LEGISLATIVE   DEPARTMENT 


Property 
Qualifi- 
cations 


Argu- 
ments for 
and 
against 


benefit  of  their  services.  Careers  are  moreover  interrupted. 
A  promising  politician  may  lose  his  seat  in  his  own  district 
through  some  fluctuation  of  opinion,  or  perhaps,  because 
he  has  ofi"ended  the  local  wire-pullers  by  too  much  inde- 
pendence. Since  he  cannot  find  a  seat  elsewhere  he  is 
stranded ;  his  political  life  is  closed,  while  other  young  men 
inclined   to  independence  take  warning  from  his  fate."  ^ 

Property  qualifications  for  membership  in  legislative 
bodies  were  very  common  in  former  times  and  still  survive 
in  some  countries.  In  Great  Britain,  for  example,  until 
1858  the  possession  of  an  income  of  ;^6oo  was  required  of 
county  members  and  ;^300  of  borough  members.  Under 
the  French  charter  of  18 14  the  payment  of  direct  taxes 
to  the  amount  of  at  least  1000  francs  was  required  of  all 
deputies  and  this  requirement  lasted  until  1848.  In  many 
of  the  early  state  constitutions  of  the  United  States  mem- 
bership in  the  legislatures  was  restricted  to  large  land- 
owners, taxpayers,  or  owners  of  personal  property  of  a 
certain  amount.^  With  the  advance  of  the  democratic  move- 
ment, however,  property  requirements  have  disappeared 
almost  everywhere.  They  still  survive  only  here  and  there 
for  membership  in  upper  chambers.  In  the  Dominion 
of  Canada,  for  example,  the  ownership  of  $4000  worth 
of  property  is  required  for  membership  in  the  House  of 
Lords;  in  Belgium  the  ownership  of  $2400  worth  of  prop- 
erty, or  the  payment  of  $240  of  taxes,  is  required  for  mem- 
bership in  the  senate ;  and  in  Sweden  the  possession  of  real 
property  of  the  value  of  $22,000  or  an  income  of  $1200  is 
required.  In  the  Netherlands  only  the  highest  taxpayers 
are  eligible. 

The  chief  argument  in  favor  of  property  qualifications 
for  membership  in  the  legislature  is  that  the  ownership  of 

^  "American  Commonwealth,"  abridged  ed.,  p.  145. 

^  See  an  article  by  W.  C.  Morey  entitled  "Revolutionary  State  Constitutions," 
in  the  "Annals  of  the  American  Academy  of  Political  and  Social  Science,"  vol.  IV; 
also  an  article  on  the  same  subject  by  W.C.  Webster  in  the  same  publication,  vol.  IX. 


QUALIFICATIONS   AND   TERM   OF   REPRESENTATIVES    455 

property  is  likely  to  be  evidence  of  certain  qualities  in  the 
individual  which  indicate  legislative  fitness,  such,  for  ex- 
ample, as  thrift,  economy,  intelligence,  business  ability, 
conservatism,  etc.  Moreover,  the  man  of  means  is  more 
likely  to  have  the  time  and  opportunity  for  study  and 
devotion  to  the  public  service  than  one  who  must  devote 
a  large  part  of  his  energies  to  earning  a  livelihood.  As  a 
matter  of  fact,  where  the  principle  of  non-payment  of 
members  is  the  rule,  as  in  Great  Britain,  it  is  practically 
necessary  that  the  representative  should  have  a  private 
income  and  thus  the  possession  of  property  becomes  an 
implied  qualification.  But  against  this  it  may  be  argued 
that  the  possession  of  property  is  not  necessarily  a  sign  of 
ability,  intelligence,  or  integrity;  nor  the  lack  of  it,  con- 
clusive evidence  of  unfitness.  The  property  test  would 
often  deprive  the  state  of  the  services  of  many  well- 
equipped,  able,  and  patriotic  men  upon  whom  the  ad- 
vantages of  fortune  have  not  descended.^ 

It  is  a  principle  of  representation  well  recognized  in  Disquaii- 
many  states  that  legislative  mandate  and  administrative  ^'^^^'o^s 
office  are  incompatible  and  ought  not  to  be  intrusted  to 
the  same  hands.  Accordingly,  we  find  in  the  constitu- 
tions of  most  states  provisions  disqualifying  holders  of 
certain  offices  from  occupying  seats  in  the  legislature. 
In  the  United  States  the  disqualification  is  practically 
absolute,  exceptions  being  recognized  only  in  the  case  of  a 
few  minor  offices,  the  duties  of  which  are  hardly  incom- 
patible with  the  legislative  function.  The  reason  for  the 
disqualification  is  that  those  who  are  charged  with  the 
execution  of  the  laws  ought  not  to  have  a  share  in  their 
making,  both  for  reasons  of  expediency  and  public  policy. 

In   states   having   the   cabinet   system   of  government,  incom- 
however,  the  doctrine  of  the  separation  of  powers  is  not  JJ*office 

carried  to  the  same  length  as  in  the  United  States,  and  and  Legis- 
lative 

'Compare  Story,  "Commentaries,"  vol.  I,  sec.  621;  Sidgwick,  "Elements  of    Mandate 
Politics,"  pp.  400-401 ;  Bluntschli,  "  AUgemeines  Staatsrecht,"  p.  78. 


456  THE   LEGISLATIVE   DEPARTMENT 

the  chief  officers  of  the  executive  department  are  usually 
not  only  members  of  the  legislature  but  are  in  fact  its 
leaders.  In  Great  Britain  and  some  continental  states, 
however,  when  a  member  of  the  legislature  is  appointed 
to  a  cabinet  office,  he  is  required  by  the  constitution  to 
resign  his  legislative  mandate  and  seek  reelection  in  order 
to  give  his  constituents  an  opportunity  to  approve  or  dis- 
approve of  his  assumption  of  an  administrative  office. 
Formerly  religious  qualifications  were  common  both  in 
Europe  and  America,  but  with  the  growth  of  religious 
liberty  and  the  separation  of  church  and  state  such  require- 
ments have  almost  entirely  disappeared.^  In  some  states 
certain  ecclesiastical  persons  are  debarred  from  sitting  in 
the  legislature.  Thus  in  Great  Britain  the  clergy  of  both 
the  Roman  Catholic  Church  and  the  Established  Church 
of  England  are  excluded,  and  disqualifications  of  a  similar 
nature  exist  in  some  of  the  continental  states.  In  a  few 
of  the  American  states,  notably  Maryland  and  Tennessee, 
ministers  of  the  gospel  are  ineligible  to  public  office.^ 
Legisia-  The  principle  of  modern  representative  government   re- 

Tenure  quires  that  the  tenure  of  the  representative  shall  be 
limited.  Manifestly  if  it  is  perpetual,  or  even  very  long, 
the  responsibility  of  the  representative  to  his  constituents 
cannot  be  enforced.  Under  such  circumstances  representa- 
tive government  is  obviously  such  only  in  name,  for  a  per- 
manent mandate  in  a  representative  system  is  a  contradic- 
tion of  terms.  There  must  be  periodical  elections  if  the  will 
of  the  electorate  is  to  be  ascertained  and  made  known  to 
the  representative  and  by  him  enacted  into  law.  Concern- 
ing the  necessity  of  frequent  elections  as  a  means  of  pre- 
serving  the   representative   system   there  is  to-day  little 

*  In  a  few  of  the  American  states  persons  who  do  not  believe  in  the  existence  of 
God  or  a  future  state  of  rewards  and  punishments  are,  however,  debarred  from  hold- 
ing any  office,  legislative,  or  administrative.  Oaths  are  commonly  required;  but  in 
England  this  requirement  was  abolished  in  1885,  following  the  unsuccessful  attempt 
to  unseat  Bradlaugh  for  refusing  to  take  the  oath  then  required. 

'  Dealey,  "  Our  State  Constitutions,"  p.  63. 


QUALIFICATIONS   AND   TERM    OF   REPRESENTATIVES    457 

difference  of  opinion ;  but  as  to  the  length  of  term  sufficient 
to  insure  responsibility,  there  is  no  precise  rule  or  principle 
of  universal  application,  and,  as  a  matter  of  fact,  the  prac- 
tice of  states  varies  widely.  Thus  we  find  the  term  of  the 
representative  varying  from  one  year  in  some  of  the  Amer- 
ican states  to  seven  years  in  Great  Britain,  though  in  the  lat- 
ter country,  owing  to  dissolutions  of  Parliament,  elections 
in  fact  come  oftener  than  seven  years,  the  average  duration 
of  recent  Parliaments  having  been  less  than  four  years.  It 
was  the  prevailing  opinion  in  certain  parts  of  America  at 
the  time  of  the  adoption  of  the  federal  constitution  that 
"where  annual  elections  end,  tyranny  begins";  and  this 
feeling  lay  at  the  basis  of  a  good  deal  of  opposition  to  the 
constitution  which  disregarded  this  principle  in  fixing  the 
term  of  national  representatives  at  two  years.*  This  opin- 
ion, however,  was  not  general  and  the  constitutions  of  only 
four  of  the  states  to-day,  in  fact,  provide  for  annual  elec- 
tions of  representatives.^  In  none  of  the  European  states 
has  the  principle  of  annual  elections  been  introduced,  the 
general  practice  there  being  four  or  five  year  terms. 

It  may  well  be  questioned  whether  the  disadvantages  Objec- 
and  inconveniences  of  annual  elections  do  not  outweigh  Annual 
the  advantages.     The  very  frequency  of  elections,  observed  Elections 
Judge  Story,  has  a  tendency  to  create  agitations  and  dis- 
sensions in  the  public  mind,  to  nourish  factions  and  encour- 
age   restlessness,    to   favor   rash  innovations   in   domestic 
legislation  and  public  policy,  and  to  produce  violent  and 
sudden    changes   in    the   administration   of   public  affairs 
founded    upon    temporary    excitements    and     prejudices.' 
With    regard    to   the    frequency  of   election   necessary  to 
preserve  the  representative  principle,  about  all  we  can  say 
is  that  the  mandate  ought  to  be  neither  too  short  to  defeat 

.  '  See  "The  Federalist,"  No.  53. 
*  Massachusetts,  Rhode  Island,  New  York  (for  members  of  the  lower  house),  and 
New  Jersey  (for  members  of  the  lower  house). 
'"Commentaries,"  vol.  I,  sec.  593. 


458 


THE   LEGISLATIVE   DEPARTMENT 


its  purpose  nor  too  long  to  remove  the  representative  from 
all  popular  control.  There  is  a  popular  belief  that,  where 
no  other  circumstances  affect  the  case,  the  greater  the 
power,  the  shorter  ought  to  be  its  duration.  Perhaps  the 
true  principle  lies  somewhere  between  the  New  England 
idea  of  annual  elections  and  the  British  practice  of  seven 
years.  We  agree  with  the  opinion  once  expressed  by  Fisher 
Ames  that  the  term  ought  to  be  so  long  that  the  represen- 
tative may  understand  the  interests  of  the  people,  and  yet 
so  limited  that  his  fidelity  may  be  secured  by  a  dependence 
upon  their  approbation.^ 


VI.     REPRESENTATION    OF    MINORITIES 

A  subject  of  prolific  discussion  within  comparatively 
recent  times  has  been  the  question  of  allowing  representa- 
tion in  the  legislature  to  minority  parties.^  John  Stuart 
Mill,  in  his  classic  work  on  "  Representative  Government," 
declared  that  "it  is  an  essential  part  of  democracy  that 
minorities  should  be  adequately  represented."  "No  real 
democracy,  nothing  but  a  false  show  of  democracy,"  he 
said,  "is  possible  without  it."  "Nothing  is  more  cer- 
tain," he  affirmed,  "than  that  the  virtual  blotting  out  of 
the  minority  is  no  necessary  or  natural  consequence  of  free- 

^  Elliot's  "  Debates,"  vol.  I,  p.  30. 

^  For  the  literature  of  minority  representation,  see  Commons,  "Proportional  Rep- 
resentation " ;  Thomas  Hare,  "On  the  Election  of  Representatives,"  especially 
ch.  I ;  Saripolos,  "  La  Democratic  et  I'filection  proportionnelle,"  2  vols.  (1899); 
Mill,  "Representative  Government,"  ch.  7;  Laveleye,  "Le  Gouvernement  dans  la 
Democratic,"  vol.  II,  bk.  IX,  ch.  10;  Daguin,  "Etude  sur  la  Representation  pro- 
portionnelle en  Espagne  "  ;  Duguit,  "Droit  constitutionnel,"  PP-  356-371;  Benoist, 
"Rapport  fait  au  Nom  de  la  Commission  du  Suffrage  universel,"  April,  1905, 
"Jour.  Off.  Doc.  Pari.";  also  his  "  Crise  de  I'fitat  moderne,"  ch.  3;  Kloti,  "Die 
Proportionalwahl  in  der  Schweiz  "  (1889);  Naville,  "Essai  sur  la  Representation 
proportionnelle"  (1887);  Clement,  "La  Reforme  electorale"  (1906);  Wendt, 
"Die  Proportionalwahl  zur  Finnischen  Volksvertretung "  (1906);  Dutcher, 
"Minority  or  Proportional  Representation  "  (1872);  Bluntschli,  "Politik,"  bk.  X, 
ch.  3 ;  Prins,  "La  Democratic  et  le  Regime  parlementaire " ;  also  his  "De 
I'Esprit  de  Gouvernement  democratique,"  ch.  2;  and  the  various  essays  on  the 
subject  by  Scverin  de  la  Chapelle. 


REPRESENTATION   OF   MINORITIES  459 

dom,  but  instead  is  diametrically  opposed  to  the  first 
principle  of  democracy;  representation  in  proportion  to 
numbers."  ^  Mill  lamented  that  most  existing  democracies 
were  not  "governments  of  the  whole  people,  by  the  whole 
people,  equally  represented,  but  governments  of  the  whole 
people,  by  a  mere  majority  of  the  people,  exclusively 
represented."  The  present  system  of  representation  is 
often  said  to  be  undemocratic  because  it  in  effect  per- 
manently disfranchises  multitudes  of  electors  and  leaves 
them  without  representation  because  they  are  politically 
in  a  minority  in  their  constituencies.  Indeed,  it  may,  and 
not  infrequently  does,  happen  that  a  majority  of  the  repre- 
sentatives in  the  legislature  are  returned  by  a  minority 
of  the  electors.^  Against  this,  however,  it  may  be  argued 
that,  although  the  minority  party  in  a  given  constituency 
may  have  no  representation  of  its  own,  it  is  often  in  the 
majority  in  other  constituencies,  and  thus  the  represen- 
tatives chosen  by  the  party  in  those  districts  where  it 
is  in  the  majority  represent  the  party  in  the  minority 
districts.  Thus  it  may  be  said  that  the  Republican 
minorities  in  the  Southern  states  of  the  American  union 
are  represented  in  Congress  by  Republican  members  from 
the  Northern  states,  while  the  Democrats  of  New  England 
are  represented  by  the  Democratic  members  returned 
from  the  South,  But  it  is  asserted  that  no  such  theory  of 
representation  is  sound  because  a  representative  chosen 
by  a  constituency  in  one  part  of  a  state  as  vast  as   the 

'  p.  131  (Universal  Library  Series).  Compare  also  Lecky,  who  observes  that  "it 
can  hardly  be  contended  that  the  substitution  of  a  representation  of  the  whole  nation 
for  a  representation  of  a  mere  majority  is  contrary  to  democratic  principles."  "De- 
mocracy and  Liberty,"  vol.  I,  p.  220. 

'  "It  is  to  go  contrary  to  the  evidence,"  says  the  French  writer,  M.  Duguit,  "to 
aflSrm  that  a  parliament  chosen  according  to  the  pure  majority  system  expresses 
more  exactly  the  will  of  the  nation,  than  one  in  which  the  different  political  parties  in 
the  state  have  their  representatives.  If  the  nation  itself  directly  expresses  its  will, 
it  must  be  the  nation  composed  of  its  different  parties  —  it  is  necessary,  in  short, 
that  the  parliament  should  be  composed  of  the  same  elements  as  the  nation."  "  Droit 
constitutionnel,"  p.  359. 


460 


THE   LEGISLATIVE   DEPARTMENT 


Majority 
Party 
often 
elects 
more  than 
its  Share 
of  Repre- 
sentatives 


republic  of  the  United  States  cannot  adequately  represent 
the  members  of  the  party  living  in  extremely  distant  parts. 
It  often  happens  in  the  United  States,  both  in  the 
national  and  the  state  legislatures,  as  well  as  in  the 
municipal  councils,  that  the  majority  party  elects  a  larger 
number  of  representatives  than  it  would  be  entitled  to  on 
the  basis  of  its  numerical  strength.  Thus  in  the  presi- 
dential election  of  1904  the  Republican  party,  while  cast- 
ing only  54  per  cent  of  the  total  vote  in  the  country  at 
large,  elected  65  per  cent  of  the  representatives  in  Congress. 
In  the  Oregon  state  election  of  1906  the  Republican  part}^, 
polling  55  per  cent  of  the  total  vote  cast,  elected  88  mem- 
bers of  the  legislature,  while  the  Democratic  party,  casting 
34  per  cent  of  the  total  vote,  succeeded  in  electing  only  7 
representatives.  In  the  New  York  City  election  of  1906 
the  Republicans  chose  41  members  of  the  municipal  council, 
whereas  on  the  proportional  basis  they  would  have  returned 
only  18  members.^  Instances  of  this  kind  occur  at  every 
election,  not  only  in  the  United  States,  but  in  other  countries 
as  well.^  The  minority  party  in  a  constituency  usually  does 
not  secure  any  representation  under  the  existing  system, 
and,  taking  the  aggregate  result  in  all  the  districts  over 
which  the  election  extends,  neither  party  secures  the  rep- 
resentation to  which  its  aggregate  numerical  strength 
throughout  the  country  entitles  it;  sometimes  the  one  party 


*  Commons,  "Proportional  Representation,"  2d  ed.,  pp.  9-10. 

*  M.  Charles  Benoist,  a  member  of  the  French  Chamber  of  Deputies  and  a  well- 
known  writer  on  the  subjectof  proportional  representation,  made  a  report  for  the  com- 
mittee on  universal  suffrage  in  1905  in  which  he  showed  that  from  1898  to  1902  an 
average  of  only  fifty-three  per  cent  of  the  electors  were  represented  in  the  chamber 
—  that  is,  represented  by  deputies  of  their  own  parties.  Thus,  in  1902,  5,159,000 
electors  were  represented  in  the  chamber,  while  5,818,000  were  unrepresented.  The 
famous  separation  law  of  1905,  he  says,  was  passed  by  the  vote  of  341  deputies 
who  represented  exactly  2,647,315  electors  out  of  a  total  electorate  of  10,967,000. 
One  can  hardly  claim,  therefore,  he  concludes,  that  the  laws  of  the  French 
Republic  represent  the  will  of  a  majority  of  the  country.  See  also  his  "  De  I'Or- 
ganisation  du  Suffrage  universel  "  in  his  "  Crise  de  I'fitat  moderne."  See  also  on 
this  point,  Bluntschli,  "Politik,"  bk.  X,  ch.  3. 


REPRESENTATION   OF   MINORITIES  461 

secures  more  than  its  rightful  proportion,  sometimes  the 
other. 

"The  importance  of  providing  some  representation  for  Views  of 
minorities,"  observes  Mr.  Lecky,  "is  extremely  great.  mIu^^*"'* 
When  two  thirds  of  a  constituency  vote  for  one  party, 
and  one  third  for  the  other,  it  is  obviously  just  that  the 
majority  should  have  two  thirds  and  the  minority  one 
third,  of  the  representation."  ^  Mill  readily  admits  that 
the  majority  must  rule  in  a  representative  system  and  that 
the  minority  must  yield  to  its  will ;  but  from  that  it  does 
not  follow,  he  asserts,  that  the  minority  should  have  no 
representation  at  all.  "In  any  really  equal  democracy," 
says  Mill,  "every  or  any  section  would'  be  represented, 
not  disproportionately,  but  proportionately.  A  majority 
of  the  electors  would  always  have  a  majority  of  the  repre- 
sentatives; but  a  minority  of  the  electors  would  always 
have  a  minority  of  the  representatives.  Man  for  man 
they  would  be  as  fully  represented  as  the  majority  and 
unless  they  are,  there  is  not  equal  government,  but  a  gov- 
ernment of  inequality  and  privilege  —  contrary  to  all  just 
government,  but  above  all  contrary  to  the  principle  of 
democracy  which  professes  equality  as  its  very  root  and 
foundation."  ^ 

Various  schemes  and  expedients  designed  to  give  repre-  Propor- 
sentation  to  minority  parties  or  to  considerable  groups  of  ^°°^ 
electors  have  been  frequently  proposed,  and  some  of  them  Minority 
have  been  put  into  practice  here  and  there,  although  it  tatfoT*° 
cannot  be  said  that  any  one  of  these  has  received  general 
approval.     Where  the  scheme  allows  each  party  or  group 
representation    in    proportion   to   its   voting   strength,  we 
have  a  system  of  proportional   representation;    where  it 
allows  some  representation  to  minorities,  but  not  neces- 

'  "Democracy  and  Liberty,"  vol.  I,  p.  221.  Compare  also  Lieber,  who  remarks 
that  "essential  representation  requires  a  fair  representation  of  the  minority." 
"Civil  Liberty  and  Self-government,"  p.  175. 

*"  Representative  Government,"  p.  127. 


462  THE   LEGISLATIVE   DEPARTMENT 

sarlly  in  proportion  to  their  numerical  voting  strength,  we 
have  a  system  of  minority  representation.^  In  either 
case  the  essential  feature  is  the  formal  recognition  of  the 
existence  of  parties  or  groups  and  the  granting  to  each  a 
special  representation. 
The  Of  the  various  schemes  which  have  been  adopted  to 

vote^'^*^*    insure  representation  to  minorities  the  following  are  the 
Plan  most  important:^  First,  the  limited  vote,  according  to  which 

the  voter  in  any  electoral  district  from  which  several 
representatives  are  to  be  chosen  is  allowed  to  vote  for  a 
smaller  number  of  candidates  than  there  are  places  to  be 
filled.  For  example,  if  three  members  are  to  be  chosen 
from  a  constituency,  the  elector  is  allowed  to  vote  for  two 
candidates,  so  that  the  minority  is  reasonably  certain  of 
electing  one  of  the  three.  This  method,  however,  can  be 
employed  only  under  an  electoral  system  in  which  three 
or  more  members  are  to  be  chosen  from  each  district,  and 
it  is  open  to  the  objection  that  it  does  not  allow  propor- 
tional  representation,  but  only  limited  representation,  to 
minority  parties.  Moreover,  it  usually  secures  represen- 
tation to  large  minorities  only,  and  makes  no  provision  for 
third  parties.  This  method  was  introduced  into  Great 
Britain  in  1867  for  the  election  of  members  of  parliament 
in  the  so-called  "three-cornered"  constituencies,  thirteen 
altogether.  It  was  abolished  by  the  reform  bill  of  1885, 
though  if  the  "three-cornered"  system  had  been  made 
general  in  1867,  it  probably  would  have  been  readily  ac- 
.  cepted  and  continued  as  a  permanent  institution.  The 
same  system  was  employed  in  New  York  City  from  1873 
to  1882  for  the  election  of  aldermen,  and  was  introduced 
into  the  city  charter  of  Boston  in  1893  for  the  election  of 
the  twelve  aldermen,  each  elector  being  allowed  to  vote 

'  Proportional  representation  is  of  course  minority  representation,  though  minor- 
ity representation  is  not  necessarily  proportional. 

^  The  discussion  given  above  of  the  several  schemes  of  proportional  representa- 
tion is  taken  in  part  from  an  article  by  the  author  in  the  New  International  Ency- 
clopaedia. 


REPRESENTATION   OF   MINORITIES  463 

for  not  more  than  seven  of  the  twelve;  '  in  Italy  from  1882 
to  1 89 1  for  the  election  of  members  of  the  Chamber  of 
Deputies;  and  in  Japan  from  1889  to  1901  for  the  election 
of  members  of  the  House  of  Commons.  It  is  employed  at 
the  present  time  in  Brazil  for  the  choice  of  national  depu- 
ties in  districts  where  from  three  to  five  members  are 
chosen,  and  also  for  the  choice  of  provincial  and  mu- 
nicipal councillors;  in  Italy  for  the  election  of  members  of 
provincial  and  municipal  councils;  in  Portugal  for  the 
election  of  all  deputies  to  the  national  parliament;  and 
in  Spain  for  the  election  of  deputies  in  districts  where  more 
than  two  are  to  be  chosen. 

Second,  there  is  the  cumulative  method,  which  allows  the  The"Cu- 
elector  to  cast  as  many  votes  as  there  are  representatives  ^etho([^ 
to  be  chosen  from  the  electoral  district  and  which  permits 
him  to  distribute  his  votes  among  the  different  candidates 
as  he  pleases  or  to  cumulate  them  on  one  or  more  of  the 
candidates.  Thus,  if  three  representatives  are  to  be 
chosen  from  a  district,  the  elector  may  distribute  his  three 
votes  equally  among  the  candidates,  giving  one  to  each,  or 
he  may  give  them  all  to  one,  or  distribute  them  in  other 
ways.  The  advantage  of  this  method  over  the  preceding 
system  is  that  it  enables  a  small  minority  to  elect  at  least 
one  member  by  cumulating  its  votes  on  a  single  candidate. 
The  chief  objection  to  it  is,  that  it  frequently  involves  a 
waste  of  votes,  since  a  popular  candidate  may  receive 
many  more  votes  than  are  necessary  to  elect  him,  while  his 
less  popular  party  associate  may  fail  of  election.  It  thus 
happens,  sometimes,  that  where  three  members  are  chosen, 
the  minority  party  elects  two  and  the  majority  but  one. 
To  prevent  such  occurrences,  strict  party  organization  and 

*  Fairlie,  "Essays  in  Municipal  Administration,"  p.  132.  The  limited  vote 
method  is  also  applied  to  the  election  of  sanitary  trustees  in  Chicago,  the  election  of 
police  magistrates  in  the  city  of  Philadelphia,  and  the  election  of  supreme  court 
judges  in  Pennsylvania.  See  Wisconsin  Legislative  Reference  Bulletin,  entitled, 
"  Proportional  Representation,"  compiled  by  Roy  E.  Curtis. 


464  THE   LEGISLATIVE   DEPARTMENT 

discipline  are  necessary,  and  the  voters  must  be  carefully 
instructed  as  to  how  they  shall  distrihute  their  votes. 
Thus  the  system  tends  to  multiply  and  strengthen  the 
evils  of  party  politics  and  in  particular  to  perpetuate 
"machine"  control.  Like  the  limited  vote  system,  the 
cumulative  method  does  not  necessarily  secure  propor- 
tional representation. 

The  cumulative  method  is  now  employed  for  the  elec- 
tion of  members  of  the  legislative  council  in  the  Cape  of 
Good  Hope  Colony,  and  for  the  election  of  members  of  the 
Illinois  House  of  Representatives.^  Under  the  Illinois 
constitution  adopted  in  1870  three  representatives  are 
chosen  from  each  legislative  district,  and  each  elector  is 
allowed  three  votes  which  he  may  cumulate  on  one  candi- 
date or  distribute  among  the  three  in  such  manner  as  he 
pleases.  In  practice,  the  scheme  has  always  (except  in 
three  instances)  given  the  minority  party  at  least  one 
representative  in  each  legislative  district  of  the  state. 
With  only  three  exceptions  also,  third  parties  (Socialists 
or  Prohibitionists)  have  always  been  able  by  cumulating 
their  votes  to  elect  a  few  representatives  —  the  number 
ranging  from  one  to  five  in  each  legislature.  Sometimes, 
however,  owing  to  miscalculations  of  party  strength  or 
defective  party  discipline,  the  majorit}^  party  secures  only 
one  of  three  members  and  the  minority  two.^ 
The  Third,  there  is  the  preferential  system.     This,  sometimes 

"Prefer-     known  as  the  Hare  or  Andrae  system,  so  called  because  pro- 

ential"  ■' 

System  posed  by  an  Englishman  named  Hare,  and  introduced  mto 
Denmark  by  Andrae,  provides  for  the  election  of  representa- 
tives by  general  ticket,  and  allows  each  elector  to  vote  for 

'  The  cumulative  method  is  applied  in  a  number  of  the  American  states  to  the 
election  of  directors  in  private  corporations.  It  was  also  introduced  into  England 
in  1870  for  the  election  of  members  of  school  boards. 

'  This  has  happened  twenty-four  times  since  the  scheme  went  into  operation  in 
Illinois  in  1871.  For  a  careful  study  of  the  actual  workings  of  the  system  in  Illinois, 
see  a  monograph  by  Blaine  F.  Moore,  entitled  "The  History  of  Cumulative  Voting 
and  Minority  Representation  in  Illinois,  1870  to  1908." 


REPRESENTATION   OF   MINORITIES  465 

one  candidate  or  for  a  limited  number,  and  also  permits  him 
to  indicate  his  second  and  third  choices,  etc.  The  total 
number  of  votes  cast  is  divided  by  the  number  of  repre- 
sentatives to  be  chosen,  and  the  'quotient  is  taken  as  the 
amount  necessary  to  elect  any  candidate.  In  counting 
the  ballots  only  the  first  choices  are  considered,  and  as  soon 
as  a  candidate  has  received  a  number  of  votes  equal  to  the 
electoral  quotient  he  is  declared  elected,  and  no  more  votes 
are  counted  for  him.  The  remaining  ballots  which  desig- 
nate him  as  first  choice  are  then  counted  for  the  other 
candidates  in  the  order  of  preference,  and  so  on  down  the 
list  until  the  necessary  number  of  persons  have  been  de- 
clared elected.^  Under  this  system  the  waste  of  votes  is 
insignificant,  but  its  complexity  is  an  objection,  and  the 
element  of  chance  enters  somewhat  into  the  scheme.  It 
is  inconvenient  when  applied  to  large  electoral  districts, 
because  all  the  ballots  must  be  counted  at  some  central 
office  and  a  recount  is  practically  impossible.  This 
method  was  advocated  by  John  Stuart  Mill  in  his  work 
on  "Representative  Government,"  and  has  also  received 
the  indorsement  of  Sir  John  Lubbock  (now  Lord  Ave- 
bury),  Leonard  Courtney,  W.  E.  H.  Lecky,  and  other  well- 
known  English  publicists.  Mill  places  it  "among  the 
very  greatest  improvements  yet  made  in  the  theory  and 
practice  of  government."  ^  Its  advantages,  according  to 
Mill,  are  that  it  secures  representation,  in  proportion  to 
numbers,  of  every  division  of  the  electoral  body,  not  only 
of  the  leading  minority  party,  but  of  every  considerable 
minority  in  the  constituency;  second,  it  gives  every  elector 

'  See  Hare,  "  On  the  Election  of  Representatives,"  ch.  4. 

^  "Representative  Government,"  p.  136.  For  an  analysis  of  Hare's  scheme,  see 
Lecky,  "Democracy  and  Liberty,"  vol.  I,  pp.  223-225.  Lecky's  judgment  is  that 
Hare's  scheme  could  be  worked  with  little  difficulty  and  that  it  "would  probably 
materially  improve  the  British  constitution,"  though  he  doubts  whether  public  opin- 
ion in  England  will  ever  consent  to  the  adoption  of  a  system  which  departs  so  widely 
from  its  traditional  forms  and  habits.  See  also  Benoist,  "Crise  de  ifitat  mo- 
derne,"  pp.  127-132. 

POL.  SCI.  —  3c 


466  THE   LEGISLATIVE   DEPARTMENT 

a  real  representative  —  not  a  nominal  representative  chosen 
by  others,  but  one  in  the  choosing  of  which  he  has  had  a 
part;  third,  it  is  "of  all  modes  in  which  a  national  repre- 
sentation can  possibly  be  constituted"  the  "one  which 
affords  the  best  security  for  the  intellectual  qualifications 
desirable  in  the  representative";  and,  lastly,  it  tends  to 
elevate  the  character  of  the  legislative  body  by  securing 
the  election  of  more  enlightened  and  distinguished  repre- 
sentatives/ The  system  as  originally  introduced  into  Den- 
mark in  1855  has  recently  been  modified  (1901),  but  the 
essential  principle  is  the  same.  It  has  also  been  lately 
adopted  in  Ireland  for  the  election  of  municipal  councils; 
in  Moravia  for  the  election  of  the  provincial  Diet;  in  Tas- 
mania for  the  election  of  members  for  both  the  assembly 
and  the  legislative  council ;  and  in  Finland  for  the  election 
of  members  of  the  Diet.  Several  forms  of  the  Hare  system 
exist,  but  the  general  principle  of  them  all  is  that  de- 
scribed above. ^ 
The  Finally,  there  is  the  free  list  system,  according  to  which 

System  ^  Certain  proportion  of  voters  may  nominate  a  number 
of  candidates  not  exceeding  the  number  of  places  to  be 
filled.  Each  voter  is  allowed  to  cast  as  many  votes  as 
there  are  representatives  to  be  chosen,  distributing  them 
at  will,  but  not  cumulating  them  on  any  one  candidate. 
The  number  of  votes  necessary  to  elect  is  determined  by 
dividing  the  total  vote  cast  by  the  number  of  places  to  be 
filled.  The  total  vote  cast  by  each  party  is  then  divided 
by  the  electoral  quotient,  and  the  result  is  the  number 
of  representatives  to  which  each  party  is  entitled.  Any 
deficiency  is  supplied  from  those  parties  having  the  largest 
fractional  quotas.     This  plan  possesses  the  advantage  of 

^  Sidgwick  criticises  the  scheme  on  the  ground  that  "  no  satisfactory  method  has 
been  devised  for  selecting  the  particular  votes  that  are  to  count  for  any  candidate 
who  has  votes  in  excess  of  the  required  quota."     "  Elements  of  Politics,"  p.  398. 

^  Roy  E.  Curtis,  "Proportional  Representation,"  pp.  17-19.  For  an  analysis 
of  the  Tasmanian  system,  see  L.  E.  Aylesworth,  "  American  Political  Science  Re- 
view," vol.  II,  pp.  587-590. 


REPRESENTATION   OF   MINORITIES  467 

economy  and  secures  proportional  representation.  This 
system  was  introduced  into  Cuba  in  1908  for  the  election 
of  representatives  in  the  national  congress  and  for  the 
election  of  members  of  provincial  and  municipal  councils. 
It  has  also  been  recently  introduced  into  Norway  for  the 
election  of  municipal  councilors;  into  Sweden  for  the 
election  of  members  of  the  Diet  and  members  of  county 
and  borough  councils;  and  into  the  Swiss  cantons  of 
Basel-Stadt,  Berne,  Fribourg,  Geneva,  Neuchatel,  Schwyz, 
Solothurn,  Ticino,  and  Zug  for  the  election  of  members  of 
the  cantonal  legislatures  and  in  some  cases  for  municipal 
and  communal  councilors.  It  was  also  introduced  in  the 
German  kingdom  of  Wiirtemberg  in  1907  for  the  election 
of  members  of  the  Diet  and  of  members  of  municipal 
councils  in  cities  having  a  population  of  ten  thousand  or 
over.  In  a  form  slightly  different  from  that  described 
above  it  has  existed  in  Belgium  since  1899  for  the  elec- 
tion of  members  of  both  chambers  of  the  Belgian  parlia- 
ment; and  in  a  still  different  form  it  was  introduced  into 
Japan  in  1900,  in  place  of  the  system  that  had  existed 
there  since  1889.  Oregon  is  the  first  of  the  American 
states  to  take  steps  toward  introducing  a  system  of 
real  proportional  representation.  (The  Illinois  system,  as 
stated,  does  not  provide  proportional,  but  only  minority, 
representation.)  By  a  constitutional  amendment  adopted 
in  1908  the  legislature  is  permitted  to  adopt  a  system  of 
proportional  representation,  if  it  sees  fit,  for  all  plural  elec- 
tive bodies.  Projects  for  electoral  reform,  including  pro- 
portional representation  schemes,  have  recently  been  pro- 
posed and  considered  in  Saxony,  Holland,  England,  and 
France.^ 

The  "list"  system  is  believed  to  be  well  adapted  for  use 
in  the  United  States  because  of  its  simplicity,  its  adapta- 

*  For  a  summary  of  the  proportional  representation  systems  recently  introduced 
into  Switzerland,  Japan,  Wiirtemberg,  Norway,  Sweden,  Tasmania,  and  Cuba,  see 
an  article  by  L.  E.  Aylesworth  in  the  "Political  Science  Review,"  vol.  II,  pp.  585-591. 


tation 


468  THE   LEGISLATIVE  DEPARTMENT 

bility  to  large  constituencies,  its  direct  recognition  of  the 
party  system,  and  because  it  may  be  employed  effectively 
with  the  Australian  ballot/  Moreover,  of  all  the  systems 
yet  devised,  it  secures,  as  Mill  has  shown,  the  fairest  and 
most  accurate  distribution  of  seats  among  the  various 
parties  or  groups  within  the  state. 
Objections  The  Spread  of  the  system  of  proportional  representation 
Pr/ndpie  ^uHng  the  last  ten  or  fifteen  years  has  been  very  encourag- 
of  Pro-  ing  to  its  advocates,  but  as  yet  it  has  not  made  good  its 
Represen-  claim  to  general  acceptance.  It  is  advocated  by  some 
visionary  persons  as  a  remedy  for  all  the  ills  of  society;  and 
the  more  ultra  democratic  element  of  the  population  de- 
mand it  for  the  reason  that  it  is  a  step  in  the  direction  of 
a  more  perfect  democracy.  Many  able  writers,  however, 
condemn  the  principle  of  minority  representation  and 
maintain  that  the  majority  system  is  the  true  principle 
and  is  liable  to  fewer  dangers.  Sidgwick,  for  example, 
points  out  two  "serious  objections"  to  the  system  of  mi- 
nority representation.  In  the  first  place,  the  giving  of 
representation  to  groups  as  such  involves  the  loss  of  a 
valuable  protection  against  demagogy  by  removing  the 
"natural  inducements  which  local  divisions  give  for  the 
more  instructed  part  of  the  community  to  exercise  their 
powers  of  persuasion  on  the  less  instructed."  In  the  second 
place,  representation  of  groups,  he  says,  "will  inevitably 
tend  to  encourage  pernicious  class  legislation."  In  the 
third  place,  it  will  tend  to  reduce  the  standard  of  efficiency 
in  the  legislature  by  securing  the  election  of  men  who 
represent  one  set  of  interests  or  opinions  rather  than  all 
of  them.  "We  want  for  legislators,"  says  Sidgwick,  "men 
of  some  breadth  of  view  and  variety  of  ideas,  practiced  in 
comparing  different  claims  and  judgments,  and  endeavoring 
to  find  some  compromise  that  will  harmonize  them  as  far 
as  possible,"  which  can  hardly  be  secured  under  a  system 

'  Curtis,  op.  cit.,  p.  27.    For  the  draft  of  a  proposed  law  embodying  the  principles 
of  the  "list"  system,  see  Commons,  "Proportional  Representation,"  pp.  119-122. 


REPRESENTATION   OF   INTERESTS  469 

in  which  the  community  is  not  locally  divided  for  elec- 
toral purposes/  "To  establish  the  system  of  proportional 
representation,"  says  Esmein,  "is  to  convert  the  remedy 
supplied  by  the  bicameral  system  into  a  veritable  poison; 
it  is  to  organize  disorder  and  emasculate  the  legislative 
power;  it  is  to  render  cabinets  unstable,  destroy  their 
homogeneity  and  make  parliamentary  government  impos- 
sible." If  applied  to  parliamentary  elections,  logic  and 
consistency,  he  goes  on  to  say,  require  that  it  shall 
be  applied  to  the  election  of  executives  and  adminis- 
trative officers,  and  this  is  but  the  entering  wedge  to 
anarchy.^ 

VII.     REPRESENTATION    OF   INTERESTS 

The  idea  that  not  only  every  political  party  but  also  Early 
every  class,  profession,  and  important  economic  and  social  ^^^^^ 
interest  in  the  state  should  be  separately  represented  in  the 
legislative  branch  has  been  advocated  by  some  writers  and 
publicists.  Indeed,  this  principle  was  the  distinguishing 
characterictic  of  the  representative  system  during  its  early 
stages.  In  the  representative  systems  of  the  medieval 
period,  each  of  the  three  estates  —  nobility,  clergy,  and 
commons  —  had  its  own  distinct  representation.  In 
some  states,  notably  Sweden,  the  idea  was  carried  still 
further,  representation  being  allowed  to  each  of  the  four 
orders  into  which  the  population  was  divided,  namely,  the 
nobility,  the  clergy,  the  townspeople,  and  the  peasant 
class  —  a  system  which  survived  until  1866  and  was  also 
in  force  in  Finland. 

The  system  which  has  prevailed  in  Prussia  since  1850,  The 
in   Saxony,  and  in   the  German   municipalities  generally,  ^^^aus 
by  which  the  voters  are  divided  into  three  classes  accord-  trian 
ing  to  the  amount  of  taxes  they  pay,  each  class  choosing 
one  third  of  the  members  of  the  electoral  body  in  each  dls- 

*  "Elements  of  Politics,"  p.  396.  '  Op.  cit.,  p.  247. 


470  THE   LEGISLATIVE   DEPARTMENT 

trict,  represents  an  attempt  to  give  distinct  representation 

to  social  and  economic  interests.^ 
Class  Until  recently  the  voters  in  Austria  were  arranged  in  five 

Represen-   ^lasses,  the  great  landowners,  the  cities,  the  chambers  of 

tation  >  o 

commerce,  the  rural  communes,  and  a  general  class,  each 
parliamentary  constituency  being  composed  wholly  of 
one  or  another  of  these  classes,  never  partly  of  one  and 
partly  of  another.  The  parliamentary  seats  were  so  dis- 
tributed among  the  five  classes  that  eighty-five  members 
were  elected  by  the  great  landowners,  one  hundred  and 
eighteen  by  the  cities,  twenty-one  by  the  chambers  of  com- 
merce, one  hundred  and  twenty-nine  by  the  rural  com- 
munes, and  seventy-two  by  the  general  class.  This  was  a 
survival  of  the  medieval  system  of  estates,  and  was  wholly 
out  of  harmony  with  twentieth  century  notions  of  repre- 
sentative government.^  With  a  few  important  exceptions 
the  system  of  class  representation  as  applied  to  the  consti- 
tution of  lower  chambers  has  disappeared  with  the  advance 
of  democracy,  and  survives  to-day  only  in  the  constitution 
of  the  upper  chambers  of  a  few  European  parliaments.^ 

^Lowell,  "Government  and  Parties  in  Continental  Europe,"  vol.  I,  p.  304; 
Prins,  "La  Democratic  et  le  Regime  parlementaire,"  ch.  10;  Bluntschli,  "Politik," 
pp.  453-454,  and  Combes  de  Lestrade,  "Les  Monarchies  de  I'Empire  allemand," 
bk.  V,  ch.  I.  It  has  sometimes  happened  that  a  single  wealthy  individual  consti- 
tuted the  first  class  in  an  election  district,  three  others  constituted  the  second  class, 
and  the  four  together  v^^ere  able  to  outvote  three  or  four  thousand  electors  in  the 
third  class.     Schierbrand,  "Germany,"  p.  74. 

*  By  a  constitutional  amendment  adopted  in  1907  the  five-class  system  of  voting 
was  abolished  and  practically  universal  suffrage  established  for  the  election  of  all 
representatives.  Each  province  is  divided  into  election  districts,  from  each  of  which, 
with  a  few  exceptions,  a  single  member  is  chosen.  See  Dodd,  "Modern  Constitu- 
tions," vol.  I,  p.  77.  For  an  account  of  the  system  superseded,  see  Lowell,  "  Govern- 
ment and  Parties  in  Europe,"  vol.  II,  pp.  87-89. 

*  Compare  Lecky,  "Democracy  and  Liberty,"  vol.  I,  p.  220. 

The  Austrian  House  of  Lords  contains  a  certain  number  of  members  who  repre- 
sent the  landowners  of  the  empire,  a  certain  number  who  represent  the  church, 
and  a  certain  number  who  have  distinguished  themselves  in  the  fields  of  science  and 
art.  The  same  is  true  to  a  less  extent  of  the  Hungarian  Table  of  Magnates.  The 
Italian  senate  contains  certain  representatives  of  the  army  and  navy,  representatives 
of  the  largest  taxpayers  and  hence  of  the  wealth  of  the  kingdom,  and  representatives 


REPRESENTATION   OF  -INTERESTS  471 

Nevertheless,  there  are  many  respectable  writers  who 
maintain  that  the  representation  of  classes,  professions, 
and  interests  is  more  in  accord  with  the  spirit  of  true 
democracy  than  the  system  which  bases  representation 
on  mere  numbers  alone.  A  legislative  body,  said  Mira- 
beau  ought  to  be  a  sort  of  reduced  portrait  of  all  the 
varied  interests  of  society.  It  should  reflect  the  aspira- 
tions and  opinions  of  all  the  different  classes  of  the 
nation  somewhat  as  a  topographical  chart  shows  the 
configurations  of  the  soil.  Lord  Brougham  in  his  work 
on  the  British  constitution  affirmed  it  to  be  a  principle 
which  ought  to  govern  in  the  distribution  of  represen- 
tation, that  every  class  and  interest  in  the  community 
should  be  represented.  "Suppose,"  he  said,  "there  were 
one  important  branch  of  trade  confined  to  a  single  dis- 
trict and  the  number  of  inhabitants  in  that  district  did 
not  warrant  its  returning  a  deputy  with  a  view  to  popula- 
tion; still  it  should  be  represented  with  a  view  to  the  trade 
driven  by  it.  So,  important  professions  should  be  repre- 
sented, and  important  classes  of  properties."  The  Eng- 
lish system,  continues  Lord  Brougham,  "sins  grievously 
against  this  canon,  since  it  recognizes  but  one  test,  the  an- 
cient distribution  of  men  into  towns."  ^ 

of  the  Royal  Academy  of  Science.  The  Spanish  senate  is  composed  of  one  hundred 
and  eighty  members,  of  whom  thirty  are  chosen  as  follows:  one  member  by  the 
clergy  of  each  of  the  nine  archbishoprics;  one  by  each  of  the  six  royal  academies; 
one  by  each  of  the  ten  universities ;  five  by  the  economic  societies  of  the  Friends  of  the 
Country.  The  remaining  one  hundred  and  fifty  are  chosen  by  electoral  colleges 
composed  of  members  of  the  provincial  deputations  and  of  representatives  chosen 
from  among  the  municipal  councilors  and  largest  taxpayers  of  the  towns.  This 
chamber  more  nearly  than  any  other  represents  the  various  interests  of  the  state 
rather  than  the  population  or  political  divisions. 

^  Works,  vol.  XI,  pp.  74,  95.  Some  writers  have  proposed  that  certain  of  the  great 
industries  of  the  state  should  be  given  separate  and  distinct  representation,  particu- 
larly agriculture,  manufacturing,  and  commerce.  The  Acte  additionnel  of  France  of 
181 5  (art.  33)  declared  that  "industry  and  the  commercial  and  manufacturing  inter- 
ests should  have  special  representation."  The  eminent  German  publicist  Robert 
von  Mohl  suggested  that  society  should  be  classified  as  landowners,  agriculturists, 
merchants,  shippers,  and  manufacturers,  and  each  class  given  representation  in  pro- 


472 


THE   LEGISLATIVE   DEPARTMENT 


Advocates 
of  "Pro- 
fessional 
Represen- 
tation" 


Among  other  authorities  who  have  defended  the  prin- 
ciple of  "professional"  or  class  representation  may  be  men- 
tioned the  French  writers  Duguit/  Prins,^  De  Greef,' 
Charles  Benoist/  La  Grasserie,^  the  Austrian  publicist 
Albert  Schaffle,  and  the  Greek  scholar  Saripolos,  the  author 
of  an  exhaustive  study  of  the  subject  of  proportional  rep- 
resentation.^ M.  Duguit  maintains  that  the  expression 
of  the  general  will  {volonte  generale)  can  only  be  effectu- 
ally secured  through  the  representation  of  *he  various 
groups  whose  opinions  go  to  make  up  the  general  will. 
No  legislature,  he  affirms,  is  therefore  truly  representative 
of  the  country  unless  it  represents  the  two  great  constitu- 
ent elements  of  the  state,  individuals  and  groups  of  indi- 
viduals. "All  the  great  forces  of  the  national  life,"  Duguit 
continues,  "ought  to  be  represented, — industry,  property, 
commerce,  manufacturing,  professions,  etc."  ^  The  system 
of  professional  representation,  he  argues,  can  be  defended 
on  the  same  ground  as  proportional  representation  for 
political  parties;  in  the  one  case  it  is  representation  of 
groups  politically  organized ;  in  the  other,  representation  of 
groups  differentiated  for  social  or  economic  purposes.* 

portion,  first  to  its  numerical  strength,  and  second .  to  its  importance  in  its  state. 
Religious  and  political  organizations  as  well  as  labor  organizations,  associations  of 
manufacturers,  employers'  associations,  etc.,  should  be  allowed  to  choose  their  own 
representatives. 

^  In  his  "Droit  constitutionnel,"  sec.  57  (1907). 

*  "Le  Democratic  et  le  Regime  representatif  "  (1889). 

'  "La  Constituante  et  le  Regime  representatif  "  (1892). 

*"Les  Sophismes  politiques  de  ce  Temps"  (1893),  also  his  "Organisation  du 
Suffrage  universel "  (1896),  and  his  "Report  of  the  Committee  of  Universal  Suf- 
frage," made  to  the  French  Chamber  of  Deputies  in  1905  ("  Jour.  off.  Doc.  Parlem." 

1919)- 

*  "  Revue  politique  et  parlementaire,"  vol.  Ill,  p.  253. 

*  "La  Democratie  et  I'filection  proportionnelle,"  2  vols.  (1889). 
^  "Droit  constitutionnel,"  pp.  368-371. 

8  Ihid.,  p.  359.  See  also  on  this  point  Benoist's  "  Crise  de  I'fitat  moderne,  de 
I'Organisation  du  Suffrage  universel,"  pp.  250  ff.,  where  a  unique  project  for  a  sys- 
tem of  proportional  representation  in  France  is  fully  discussed.  Commons,  in  his 
work  on  "Proportional  Representation,"  advocates  the  principle  of  the  repre- 
sentation of  interests.     With   regard  to  the  interests  of  labor,  for  example,  he 


REPRESENTATION  OF   INTERESTS  473 

A  strong  opponent  of  the  principle  of  representation  of  objections 
interests  is  the  French  scholar,  Esmein,  who  characterizes  s°n^*Son 
it  as  "an  illusion  and  a  false  principle,  which  would  lead  of  classes 
to  struggles,  confusion,  and  even  anarchy."     Proportional  interests 
representation,    Esmein    maintains,   whether    of    political 
groups  or  of  social  or  of  professional  classes,  is  inconsistent 
with  the  principle  of  national  sovereignty,  since  each  group 
represented   in    the    legislature    would    possess    a  fraction 
of  the  sovereignty.     "  Le  principe  de  la  souverainete  na- 
tionale  exclut  done  logiquement,"  he  says,  "dans  le  suffrage 
politique,  ce  qu'on  appelle  la  representation  des  interets.'*^ 
It   is   proper,  however,  says  Esmein,  that  the  great  eco- 
nomic interests  of  the  country  and  the  important  profes- 
sional groups  should  be  able  to  make  known  to  the  legisla- 
ture their  views  through  assemblies  which  represent  them 
and  which  are  elected  freely  by  them.     But  these  assem- 
blies should  be   merely   advisory   or   consultative.     They 
should  be  a  means  of  enlightening  the  legislative  assembly, 
but  should  not  have  the  right  to  participate  in  the  exercise 
of  the  sovereignty  of  the  state .^ 

There  is  also  good  reason  for  believing  that  a  system  of 
class  representation  or  representation  of  interests  would 
tend  to  lower  the  character  of  the  legislature,  since  each 
member  would  in  some  measure  be  the  exclusive  represent- 

asserts  that  if  the  labor  unions  could  combine  throughout  the  nation  and  elect 
members  of  Congress  who  would  represent  them  as  a  body,  just  as  they  select 
the  officials  of  their  own  organizations,  their  interests  would  be  more  effectually 
cared  for  by  the  national  lawmakers.  "  As  it  is, ' '  he  continues, ' '  they  are  forced  into 
artificial  territorial  divisions  and  are  compelled  along  with  the  whole  of  the  electorate 
to  submit  to  the  candidates  who  appeal  to  the  more  ignorant,  thoughtless,  prejudiced, 
and  easily  influenced  masses." 

^  "Droit  constitutionnel,"  3d  ed.,  p.  202.  M.  Duguit  answers  this  objection  and 
undertakes  to  show  that  proportional  representation  is  entirely  compatible  with  an 
undivided  sovereignty,  op.  cit.,  p.  358.  Benoist  admits  that  the  principle  of  the 
representation  of  interests  is  incompatible  with  national  sovereignty,  but  he  is  will- 
ing to  sacrifice  the  latter  for  the  former.  See  his  "Organisation  du  Suffrage  uni- 
versel"  (1897),  pp.  30-31. 

'  Ihid.,  p.  205. 


474 


THE   LEGISLATIVE   DEPARTMENT 


ative  of  particular  interests  or  opinions  rather  than  the 
representative  of  the  interests  of  the  state  as  a  whole/  A 
legislative  assembly  composed  of  so  many  elements  would 
tend  to  become  a  debating  society  instead  of  a  lawmaking 
body,  and  its  efficiency  would  be  diminished  in  proportion 
to  the  number  and  variety  of  interests  represented.  One  of 
the  sources  of  strength  in  the  governments  of  Anglo-Saxon 
countries  has  been  the  freedom  of  their  legislative  assem- 
blies from  the  presence  of  numerous  unstable  and  dissolv- 
ing groups  with  their  inevitable  dissensions  and  deadlocks.^ 
Finally,  the  organization  of  the  electorate  upon  the  basis 
of  class  distinctions,  whether  economic,  social,  or  profes- 
sional, would  inevitably  tend  to  multiply  artificial  dis- 
tinctions, divide  the  population  into  groups,  array  each 
against  the  others,  and  accentuate  class  antagonism 
generally.  These  evils  in  Austria  led  to  the  abolition  of 
the  class  system  in  that  country  in  1907,  and  they  are  the 
source  of  widespread  and  increasing  popular  discontent  in 
Prussia  to-day. 


VIII.     BEGINNINGS  OF  THE  REPRESENTATIVE  SYSTEM :    EARLY 

IDEAS 

Montesquieu  observed  that  the  ancients  had  no  notion 
of  a  legislative  body  composed  of  the  representatives  of  the 
people.^  The  idea  in  its  true  sense  is  distinctly  modern. 
In  the  states  of  antiquity  the  legislative  power  was  not 
delegated  to  representative  bodies,  but  was  exercised  by 

^  Compare  Sidgwick,  "Elements  of  Politics,"  p.  395;  and  Bluntschli,  "Politik," 
pp.  447-456. 

'"Imagine  a  legislature,"  says  Bradford  ("Lessons  of  Popular  Government," 
vol.  II,  p.  170),  "made  up  of  distinct  groups  of  Republicans,  Democrats,  Socialists, 
woman  suffragists,  labor  men,  prohibitionists,  religious  fanatics,  all  perfectly  deter- 
mined that  nothing  should  be  done  unless  their  special  objects  were  provided  for. 
Would  the  lobbying  and  logrolling  be  any  less  than  now,  or  would  the  strength  of  the 
groups  be  any  less  made  use  of  by  designing  men  ? "  Compare  also  Sidgwick's 
views  of  a  legislature  made  up  of  "total  abstainers,  anti-vivisectionists,  anti- vaccina- 
tionists, and  the  like"  ("Elements  of  Politics,"  p.  396). 

3  "  Esprit  des  Lois,"  bk.  XI,  ch.  8. 


BEGINNINGS   OF   THE   REPRESENTATIVE   SYSTEM    475 

kings  or  by  the  people  themselves  in  primary  assemblies. 
The  historian  Freeman,  in  speaking  of  the  governments 
of  the  leagues  of  ancient  Greece,  said  that  "the  ancient 
world  trampled  on  the  very  verge  of  representative  govern- 
ment without  actually  crossing  the  boundary";  that  ia 
ancient  Greece  the  assembly  which  acted  upon  proposed 
laws  and  gave  them  their  sanction  was  composed  of  the 
freemen  themselves  meeting  in  their  personal  capacity,  and 
that  representation  in  the  adoption  and  passage  of  laws 
was  unknown/ 

The  beginnings  of  the  modern  representative  system  ^  are  Genesis 
found  in  the  folkmoots  of  the  early  Teutons  of  Germany.  Rg^g. 
These  were  assemblies  of  the  natural  leaders  of  the  tribe,  sentative 
who  determined  the  more  important  questions  of  common  England 
interest  to  the  tribe.  The  Witenagemot  of  early  English 
history  was  the  assembly  out  of  which  in  the  course  of 
time  the  first  representative  legislature  known  to  history 
was  evolved.  Not  a  representative  body  at  first  —  at  least 
not  in  the  modern  sense  —  it  came  in  time,  under  another 
name,  to  contain  a  certain  number  of  members  who  pos- 
sessed the  true  representative  character.  At  first  chosen 
probably  by  the  sheriffs  of  the  counties,  they  came  even- 
tually to  be  elected  by  the  freeholders.  Under  Simon  de 
Montfort  in  the  thirteenth  century  representatives  from  the 
boroughs  were  added,  and  finally,  by  the  end  of  the  cen- 
tury the  assembly  had  come  to  possess  all  the  elements 
which  enter  into  the  constitution  of  the  English  Parlia- 
ment to-day.  The  clerical  element  also  was  represented, 
so  that  the  Parliament  was  indeed  the  assembly  of  the 
representatives  of  the  three  estates  of  the  realm  —  the 
nobility,  the  commons,  and  the  clergy.     Early  in  the  four- 

*  "History  of  Federal  Government,"  ch.  2. 

^  "The  idea  of  representation,"  says  Rousseau,  "is  modern;  it  comes  to  us  from 
the  feudal  governments,  from  that  iniquitous  and  absurd  government  under  which 
the  human  race  was  degraded  and  where  the  name  of  man  was  a  dishonor.  In  the 
ancient  republics  and  even  in  monarchies  the  people  never  had  representatives;  the 
very  word  was  unknown."     "Contrat  social,"  bk.  Ill,  ch.  15. 


476  THE   LEGISLATIVE   DEPARTMENT 

teenth  century  the  division  into  two  houses  was  effected, 
and  the  process  of  evolution  was  complete. 
On  the  On  the  continent  of  Europe  the  development  of   repre- 

Continent  ....  ,  .         ,  » 

sentative  mstitutions  came  later,  was  much  slower  or 
growth,  proceeded  with  less  continuity  and  upon  somewhat 
different  lines.  In  the  government  of  the  continental 
cities  of  the  Middle  Ages  the  principle  of  representation 
played  some  part,  but  it  w^as  crude  and  imperfect.  It  was 
representation  of  the  nobility,  or  of  the  trade  guilds,  or  of 
other  classes  or  organizations,  rather  than  of  the  people. 
In  the  Cortes  of  Castile  and  of  Aragon  in  the  twelfth  cen- 
tury we  have  a  legislative  assembly  containing  representa- 
tives of  the  cities.  It  was,  in  fact,  the  growth  of  cities 
during  the  Middle  Ages  that  gave  a  powerful  impetus  to 
the  development  of  the  representative  principle  by  the  de- 
mand which  they  made  for  representation  in  the  national 
assemblies.  In  France  the  beginnings  of  the  represen- 
tative system  are  found  in  the  meeting  of  representatives 
of  the  three  estates,  the  nobility,  the  clergy,  and  the  towns- 
people in  a  general  parliament  in  1302.  At  first  summoned 
by  the  king  for  advice  and  information,  it  soon  became  an 
established  principle  that  no  taxes  could  be  levied  without 
the  assent  of  the  three  estates.^  Meetings  of  the  states- 
general  of  France  took  place  at  irregular  intervals  for 
several  hundred  years,  after  which  the  practice  of  summon- 
ing them  ceased  until  the  Revolution.  The  Revolution 
abolished  the  system  of  representation  by  estates  and 
established  a  system  of  national  representation. 

In  Germany,  the  system  of  representation  by  estates 
grew  up  in  the  thirteenth  and  fourteenth  centuries  along 
somewhat  the  same  lines  as  in  France.  It  was  character- 
istic of  the  system  in  the  Middle  Ages  that  it  was  repre- 
sentation of  special  classes  or  interests  such  as  the  nobility, 

'  Bluntschli,  "  Allgemeines  Staatsrecht,"  p.  44.  On  the  development  of  the  repre- 
sentative principle  in  Europe,  see  Bluntschli,  bk.  II,  ch.  i ;  also  Jellinek,  "Recht  des 
mod.  Staates,"  bk.  Ill,  ch.  17. 


BEGINNINGS   OF   THE   REPRESENTATIVE   SYSTEM    477 

the  clergy,  the  townspeople,  etc.,  rather  than  representa- 
tion of  the  people  as  a  whole.  The  organization  of  society 
in  the  Middle  Ages,  in  fact,  consisted  largely  of  closely 
differentiated  social  groups  and  classes  as  well  as  political 
groups,  and  it  was  a  part  of  the  political  science  of  the 
time  to  allow  each  class  distinct  representation  as  such; 
and  the  idea  survives  to-day  in  the  constitution  of  many 
second  chambers,  which  represent  to  a  large  extent  the 
privileged  or  conservative  elements  in  monarchical  states 
and  political  units  in  federal  states.^  In  the  medieval 
system  the  church  was  represented  equally  with  the  nobil- 
ity, the  cities,  and  the  country.  In  practically  all  countries 
the  church  as  such  has  lost  its  representation,  though  the 
idea  still  survives  in  the  constitutions  of  a  number  of 
European  states  which  allow  certain  high  ecclesiastical 
functionaries  seats  in  the  national  parliament. 

For  a  long  time  the  deputies  of  each  estate  were  sepa-  charac- 
rately  summoned  and  often  sat  in  different  chambers  and  *7tif*^ 
voted  separately.     Thus  it  came  about  that  in  the  place  of  Medieval 
single   or  double-chambered  assemblies  there  were  some-  Represen- 
times  three  chambers  and  sometimes  four.     The  national  t^tion 
parliament  of  Sweden,   until  comparatively  recent  times, 
consisted,  as  has  been  said,  of  four  chambers,  representing 
the  nobility,  the  clergy,  the  bourgeoise  class,  and  the  peas- 
ant class."     Under  the  medieval  system  the  deputy  received 
a  commission  from  his  constituency  and  often  bore  instruc- 
tions as  to  how  he  should   vote.     Usually  he  had  only  a 
specific  power  of  attorney  to  remedy  certain  grievances  and 
only  rarely  a  general  power  of  legislation.^     Nowhere  out- 
side of  England,   indeed,   did  the  deputies  chosen  by  the 

'  Compare  Crane  and  Moses,  "Politics,"  p.  164. 

^  This  system  was  not  abolished  until  1866.  See  Dareste,  "Constitutions 
modernes."  vol.  II,  pp.  39-42. 

^Compare  Jellinek,  "Recht  des  mod.  Staates,"  pp.  556-558;  Bluntschli, 
"Allgemeines  Staatsrecht,"  p.  50;  Stubbs,  "Constitutional  History  of  England," 
vol.  Ill,  p.  424;  Sidgwick,  "Development  of  European  Polity,"  ch.  21,  especially 
p.  ,302. 


478  THE   LEGISLATIVE   DEPARTMENT 

estates  become  representatives  of  the  country  at  large  with 
general  powers  of  legislation/ 

As  Lord  Brougham  has  well  said,  the  ancient  and  medi- 
eval representative  was  a  delegate  appointed  to  meet  with 
other  delegates  and  to  declare  the  will  of  the  community, 
but  not  to  consult  for  the  good  of  the  whole.  He  was  like 
an  ambassador  sent  to  treat  with  ambassadors  sent  by 
other  states.  He  was  not  a  representative  sent  by  one 
portion  of  the  community  to  consult  with  the  representa- 
tives of  other  portions  of  the  same  community  and  to  de- 
vise the  measures  best  adapted  for  securing  the  interests  of 
the  whole.  On  the  contrary,  he  was  an  agent  commissioned 
to  watch  over  the  separate,  independent,  and  possibly  con- 
flicting interests  of  his  principal.  In  no  other  sense  had  the 
delegate  a  truly  representative  character.^ 

IX.  THE  MODERN  IDEA  OF  REPRESENTATION;  INSTRUCTED 
VERSUS  UNINSTRUCTED  REPRESENTATION 

It  was  not  until  the  eighteenth  century  that  the  estates 
system  on  the  continent  of  Europe  gave  way  to  a  truly 
national  system  of  representation;  and,  indeed,  in  some 
instances  the  old  system  survived  until  late  in  the  nine- 
teenth century.^     The  transformation  was  fairly  complete 

*  Lieber,  "Civil  Liberty  and  Self-government,"  p.  164. 

^  "  The  British  Constitution,"  Works,  vol.  XI,  p.  30.  "  The  estates  of  the  Middle 
Ages,"  says  Lieber,  "consisted  of  deputies  strictly  instructed,  limited,  and  fettered; 
sending  for  new  instructions  on  each  new  question  which  might  turn  up ;  jealously, 
often  hostilely,  extorting  from  one  another ;  granting  and  demanding,  like  separate 
sovereigns;  little  concerned  about  the  advantage  of  the  other  parties  or  general 
justice  and  universal  fairness;  treating  as  now  a  congress  of  universal  plenipoten- 
tiaries, sent  from  various  independent  nations,  would  do  but  upon  no  broad  or  social 
and  mutual  principle."  "Political  Ethics,"  vol.  II,  p.  317.  See  also  Bornhak,  "Das 
standische  System,"  in  his  "  Allgemeine  Staatslehre,"  Zweiter  Abschnitt,  Abtheilung 
III,  sec.  I.  The  medieval  system  of  representation  by  estates,  remarks  Bluntschli, 
was  not  Volksvertreluiig  hnt  Volksspaltung.     "Politik,"  p.  451. 

*  In  the  German  kingdom  of  Wiirtemberg,  for  example,  traces  of  it  lasted  until 
the  year  1907.  Cf.  De  Lestrade,  "Les  Monarchies  de  I'Empire  allemand,"  p. 
167. 


THE   MODERN   IDEA   OF   REPRESENTATION  479 

in  England  by  the  middle  of  the  sixteenth  century/  but 
it  did  not  come  in  France  until  the  Revolution,  when  the 
states-general  declared  themselves  to  be  the  representatives 
of  the  nation.  The  modern  idea  was  embodied  in  the 
French  constitution  of  1791,  which  declared  that  the  deputy 
should  not  be  the  representative  of  any  particular  depart- 
ment, but  of  the  entire  nation  and  that  no  instructions 
should  be  given  him.^  This  principle  is  expressly  asserted 
in  the  constitution  of  the  German  Empire,  which  declares 
that  members  of  the  Reichstag  are  representatives  of  the 
whole  people  and  are  not  bound  by  propositions  and  in- 
structions.^ It  is  also  embodied  in  the  present  electoral 
law  of  France,*  in  the  electoral  law  of  Austria,  and  in  the 
constitution  of  the  Swiss  Confederation.^ 

This  represents,  we  believe,  the  true  idea  of  the  office  of  Modem 
the  representative.     He  ought  not  to  be  considered  the  mere  Jn^a«ve 
delegate  of  an  estate  or  class,  or  of  any  group,  organization,  not  the 
or  interest,  nor  the  plenipotentiary  of  any  local  government,  Deputy  ot 
but  the  representative  of  the  state  and  of  the  people  com-  ^  P^t^^u 
posing  it.     "He  represents  the  people  of  the  whole  com- 
munity," as  Lord  Brougham  has  remarked,  "exercises  his 
own  judgment  upon  all  measures,  receives  freely  the  com- 
munications of  his  constituents,  is  not  bound  by  their  in- 
structions, though    liable    to   be   dismissed    by  not   being 
reelected  in  case  the  difference  of  opinion  between  him  and 

'  Hallam,  speaking  of  a  debate  in  the  English  Parliament  in  1571  on  the  proposed 
abolition  of  an  old  law  requiring  members  to  be  resident  burgesses,  said :  "  This  is  a 
remarkable  and  perhaps  the  earljest  assertion  of  an  important  constitutional  principle 
that  each  member  of  the  House  of  Commons  is  deputed  to  serve  not  only  for  his 
constituents,  but  for  the  whole  kingdom ;  a  principle  which  marks  the  distinction 
between  a  modern  English  Parliament  and  such  deputations  of  the  estates  as  were 
assembled  in  several  continental  kingdoms;  a  principle  to  which  the  House  of 
Commons  is  indebted  for  its  weight  and  dignity,  as  well  as  its  beneficial  efficiency, 
and  which  none  but  the  servile  worshipers  of  the  populace  are  ever  found  to  gain- 
say."    "Constitutional  History,"  vol.  I,  p.  362. 

^  Constitution  of  1791,  title  IH,  ch.  i,  sec.  3,  p.  7. 

^  Reichsverfassung,  art.  29.  ■•  Law  of  Nov.  30,  1875,  sec.  13. 

'  Art.  91.     See  also  Duguit,  "  Droit  constitutionnel,"  p.  308. 


480 


THE   LEGISLATIVE   DEPARTMENT 


A.  Person 
chosen  to 
act  freely 
for  the 
People  as 
a  Whole 


them  is  irreconcilable  and  important.  The  people's  power 
being  transferred  to  the  representative  body  for  a  limited 
time,  the  people  are  bound  not  to  exercise  their  influence 
so  as  to  control  the  conduct  of  their  representatives,  as  a 
body,  on  the  several  measures  that  come  before  them."  ^ 
The  same  view  of  the  office  of  the  representative  is  held  by 
Bluntschli,  The  modern  representative,  he  declares,  is  a 
state  representative,  not  the  representative  of  any  person, 
corporation,  or  group,  and  his  duty  is  a  state  duty.  He  is 
not  bound,  Bluntschli  adds,  by  the  instructions  of  his  con- 
stituency nor  compelled  to  answer  to  them  for  his  con- 
duct. He  is  something  more  than  a  mere  commissioner  to 
register  the  mandates  of  his  constituency  and  liable  to  be 
recalled  in  case  he  refuses  to  do  so.  On  the  contrary,  he 
possesses  full  liberty  of  thought  and  action,  and  the  right 
to  interpret  for  himself  the  common  need  and  the  com- 
mon consciousness  without  restraint  upon  his  intellect  or 
conscience.^ 

An  able  defense  of  the  principle  of  uninstructed  represen- 
tation is  made  by  the  French  writer  Esmein,  who  defines  a 
representative  as  one  who,  within  the  limits  of  his  consti- 
tutional powers,  has  been  chosen  to  act  freely  and  inde- 
pendently in  the  name  of  the  people.  He  must  have  full 
independence  of  judgment  and  action,  for,  if  his  acts  are 
determined  in  advance  for  him  by  legal  rules  or  obligatory 
instructions,  he  is  not  a  representative  but  a  mere  delegate 
or  mandataire  of  the  electors.  Not  only,  declares  Esmein, 
has  a  constituency  no  right  to  recall  a  representative,  but  it 
cannot  limit  his  powers  by  instructions  or  compel  him  to  act 
in  a  certain  manner  upon  pain  of  having  his  acts  nullified. 
The  mandat  imperatif  is  not  only  contrary  to  the  principle 
of  representative  government,  but  is  no  less  contrary  to  the 


•  "The  British  Constitution,"  Works,  vol.  XI,  p.  94. 

'  "Allgemeines  Staatsrecht,  pp.  54-55.  For  a  comparison  of  the  medieval  and 
modern  ideas  of  representation,  see  Bluntschli,  ibid.,  pp.  50-54.  See  also  Bornhak. 
"Allgemeine  Staatslehre/'  pp.  94-114. 


THE   MODERN   IDEA   OF    REPRESENTATION  481 

principle  of  national  sovereignty.^  Edmund  Burke,  we 
believe,  expressed  the  true  view  of  the  office  of  the  rep- 
resentative when  he  said  that  he  owed  his  constituency 
both  industry  and  judgment,  and  when  he  sacrificed  these 
to  the  opinion  of  the  constituent,  he  betrayed  rather 
than  served  him.  "The  representative,"  he  declared, 
"should  be  a  pillar  of  state,  not  a  weathercock  on  the 
top  of  the  edifice  exalted  for  his  levity  and  versatility  and 
of  no  use  but  to  indicate  the  shiftings  of  every  fashionable 
gale."  ' 

*  "Droit  constitutionnel,"  pp.  66,  209,  249.  Compare  also  Lieber,  who  observe 
that  the  "  true  character  of  representative  government  does  not  admit  of  mandatory 
instructions  to  the  representative,  for  it  makes  of  him  a  mere  deputy  who  ought  to 
have  his  instructions  from  the  beginning."  "PoHtical  Ethics,"  vol.  II,  pp.  325-330. 
Lord  Brougham  dwells  upon  what  he  calls  the  inconsistency  and  absurdity  of  a  legis- 
lative body  meeting  to  vote  as  they  have  been  ordered  to  vote,  and  the  uselessness  of 
selecting  men  to  perform  the  mechanical  task  of  registering  the  declared  will  of  a  con- 
stituency. If,  he  declares,  they  must  vote  according  to  instructions,  there  is  no  need 
for  their  meeting  at  all,  since  a  clerk  could  just  as  well  record  and  publish  the  result. 
Discretion,  ability  to  transact  business,  probity,  respectability,  station,  and  fitness 
are  unnecessary  in  a  representative  who  is  merely  a  speaking  trumpet  for  the  people. 
Op.  cit.,  p.  36. 

*  See  his  address  to  the  electors  of  Bristol,  1780,  in  which  he  defended  his  action  in 
disregarding  their  instructions.  "The  Parliament,"  he  declared,  "is  not  a  congress 
of  ambassadors  from  different  and  hostile  interests,  which  interests  each  must 
maintain  as  an  agent  and  advocate  against  other  agents  and  advocates.  But  Parlia- 
ment is  a  deliberative  assembly  of  one  nation,  with  one  interest,  that  of  the  whole; 
where  not  local  purposes,  not  local  prejudices,  ought  to  guide,  but  the  general  good  re- 
sulting from  the  general  reason  of  the  whole.  You  choose  a  member,  indeed,  but 
when  you  have  chosen  him,  he  is  not  a  member  of  Bristol,  but  he  is  a  member  of 
Parliament." 

For  another  criticism  of  the  principle  of  instructed  representation  —  the  mandal 
imperatif  oi  the  French  —  see  St.  Girons,  "La  Separation  des  Pouvoirs,"  pp.  160- 
165.  By  his  vote,  observes  St.  Girons,  the  elector  transfers  to  the  representative  all 
the  power  he  possesses  and  cannot  therefore  share  with  him  the  power  of  legislation. 
Every  instruction,  therefore,  should  be  pronounced  null  and  void  either  by  the  legis- 
ture  or  the  judiciary,  and  a  candidate  who  promises  to  obey  the  orders  or  instructions 
of  his  constituency  when  they  are  contrary  to  the  conclusions  of  his  own  judgment 
and  conscience  ought  to  be  defeated.  French  law,  as  stated  above,  declares  every 
mandat  imperatif  to  be  null  and  void  and  releases  the  deputy  from  all  obligation 
to  obey  it.  Deputies  have  been  chosen  in  France  subject  to  certain  mandates,  but 
the  chamber  has  always  refused  to  take  notice  of  them.  See  Duguit,  "Droit 
constitutionnel,"  pp.  307-308. 
POL.  SCI.  —  71 


482 


THE   LEGISLATIVE   DEPARTMENT 


Should 
the  Rep- 
resenta- 
tive be 
subject  to 
Instruc- 
tions 


The  doctrine  of  national  uninstructed  representation  as 
set  forth  above  represents,  we  believe,  the  judgment  of  the 
great  majority  of  the  ablest  political  writers  and  publicists/ 
Whether  a  member  of  the  legislature  should  be  bound  by 
the  instructions  of  his  constituents,  that  is,  whether  his 
office  should  be  restricted  merely  to  ascertaining  and  regis- 
tering their  sentiments,  somewhat  like  that  of  a  delegate 
or  an  ambassador  to  a  congress;  or  whether  he  should 
himself  judge  for  his  constituents  what  ought  to  be  done 
and  act  according  to  his  own  convictions  independently  of 
instructions,  are  questions  upon  which  people  have  differed 
ever  since  the  principle  of  representation  became  an  estab- 
lished fact.  Although  these  questions,  as  John  Stuart  Mill 
observed,  belong  to  the  domain  of  political  ethics  rather 
than  to  political  science  or  constitutional  law,^  yet  they 
have  a  direct  bearing  on  the  subject  here  under  considera- 
tion and  may  well  receive  some  attention.  In  attempting 
to  answer  them  we  shall  do  well  to  follow  Francis  Lieber's 
suggestion  that  a  distinction  should  be  drawn  between  the 
position  of  the  representative  who  is  popularly  elected  and 
the  representative  who,  like  senators  in  federal  states,  is 
chosen  by  legislative  bodies  or  other  political  organizations.^ 


*  In  addition  to  those  quoted  above  in  support  of  the  principle  of  uninstructed 
representation,  seeBIackstone,  "Commentaries,"  bk.  I,  ch.  i ;  Montesquieu,"  Esprit 
desLois,"  bk.  XI,  ch.  6;  George  Cornwall  Lewis,  "Government  of  Dependencies," 
p.  49;  Lieber,  "Political  Ethics,"  vol.  II,  pp.  317,  326,  334.  Rousseau,  however, 
maintained  that  there  could  be  no  such  thing  as  a  representative  in  the  sense  de- 
scribed above.  "The  deputies  of  the  people,"  he  declared,  "are  not  and  cannot 
be  its  representatives;  they  are  only  its  commissioners,  they  can  conclude  nothing 
definitely.  Any  law  which  the  people  has  not  ratified  is  null;  it  is  no  law."  "Con- 
trat  social,"  bk.  Ill,  ch.  15.  For  further  discussion  of  the  modern  principle  of 
representation,  see  Esmein,  op.  cit.,  pp.  207-209;  Jellinek,  "Recht  des  mod. 
Staates,"  bk.  Ill,  ch.  17;  Bluntschli,  "Allgemeines  Staatsrecht,"  bk.  II,  ch.  2; 
Mill,  "Representative  Government,"  chs.  12-13;  Laveleye,  "Le  Gouvernement 
danslaDemocratie,"  vol.  II,  bk.  VIII,  ch.  14;  Riecker,  "Die  rechtliche  Naturder 
modernen  Volksvertretung  "  (1893);  Dandurand,  "Le  Mandat  imperatif  "  (1891); 
Briol,  "Du  Mandat  legislatif";  Duguit,  "Droit  constitutionnel,"  sees.  52-53; 
also  his  "L'fitat,  Les  Gouvernants  et  les  Agents,"  ch.  2. 

•"Representative  Goverument,"  p.  216,      '"Political  Ethics,"  vol.  II,  p.  307 


THE   MODERN   IDEA   OF   REPRESENTATION  483 

In    each    case    the    relation    between    the    representative  Argument 
and    those    who    elect    him    is    somewhat    different,    and  o°in*truc- 
the   right   of   instruction    may    be   viewed    in   a   different  tion 
Hght.     With  regard  to  the  duty  of  the  representative  who 
is  chosen  directly  by  the  people,  it  is  held  by  some  high 
authorities   that,   in  order  to  be  what  the  word   implies, 
namely,  the  mouthpiece  of  those  for  whom  he  speaks,  he 
ought  simply  to  register   their  will   rather  than  his  own 
whenever  it  can   be  accurately   made  known   to   him,   or 
he  ought  to  resign  and  make  way  for  some  one  who  more 
truly  represents  their  sentiments.     Otherwise  how  can  he 
be  said  to  be  a  servant  of  the  people  and  how  can  he  speak 
for  them  as  they  themselves  would  speak  in  his  place? 

But  those  who  adopt  this  view  ignore  the  practical  Practical 
difhculties  in  the  way  of  its  full  realization.  The  will  of  J^gfj^nVhe 
the  people  cannot  always  be  ascertained  and  made  known  Way 
to  the  representative,  for  there  are  rarely  any  organs  for 
collecting  their  sentiments  on  the  multifarious  questions 
that  are  presented  to  the  legislature  for  consideration. 
Public  opinion,  indeed,  can  only  be  ascertained  by  the  sift- 
ing process  of  a  representative  system.  What  is  often  taken 
for  public  opinion  is  in  fact  but  the  momentary  impulse 
of  excited  masses  and  not  the  calm  judgment  of  reflect- 
ing individuals.  Where,  however,  the  representative  has 
pledged  himself  before  the  election  to  act  in  a  certain  man- 
ner, the  question  of  his  duty  to  obey  instructions  is  some- 
what simplified,  for  then  a  departure  therefrom  would  be 
a  breach  of  honor  and  of  good  faith  such  as  no  representa- 
tive can  afford  to  be  guilty  of.  It  is  a  grave  question  of 
public  policy,  however,  whether  a  constituency  should 
make  it  a  condition  of  election  that  a  candidate  should  ad- 
here to  certain  opinions  laid  down  for  him  by  themselves.* 

^  Regarding  ante-election  pledges,  John  Stuart  Mill  expresses  an  unfavorable 
opinion.  Pledges  should  not  be  required,  he  says,  "unless  from  unfavorable  social 
circumstances  or  faulty  institutions,  the  electors  are  so  narrowed  in  their  choice  as  to 
be  compelled  to  fix  it  on  a  person  presumptively  under  the  influence  of  partialities 


4S4  THE   LEGISLATIVE   DEPARTMENT 

Repre-  Holding  the  view  that  the  representative  should  possess 

oughfnot  ^ul^  independence  of  judgment  and  action,  unfettered  by 
lightly  to  instructions,  we  do  not,  however,  take  the  position  that  the 
the  Wishes  Opinions  of  the  electors  are  to  be  lightly  ignored.  A  people 
stittienc°y "  Cannot  be  governed  in  opposition  to  their  primary  notions  of 
right  even  when  those  notions  are  sometimes  erroneous.  The 
representative  who  endeavors  faithfully  to  reflect  the  will 
of  his  constituency  will  not  recklessly  disregard  their  senti- 
ments, but  will,  so  far  as  is  consistent  with  his  best  judgment 
and  sense  of  duty  to  the  nation,  give  effect  to  them.  We 
agree  with  Burgess  that  the  views  of  a  constituency  should 
always  be  taken  into  account  as  contributing  to  the  make-up 
of  the  consciousness  of  the  state,  but  that  the  will  of  a  con- 
stituency has  no  place  in  the  modern  system  of  legislative 
representation.^  The  essence  of  representation,  as  Lord 
Brougham  once  said,  is  that  the  power  of  the  people  should 
be  parted  with  and  given  over  for  a  limited  period  to  the 
deputy  chosen  by  them.,  and  that  he  should  perform  that 
part  in  the  government  which,  if  it  were  not  for  this  trans- 
fer of  authority,  would  be  performed  by  the  people  them- 
selves. But  it  is  not  representation  if  the  constitutents  so 
far  retain  control  over  their  representative  as  to  act  for 
themselves.  They  may  communicate  with  him;  inform 
him  of  their  wishes,  opinions,  and  circumstances;  pro- 
nounce their  judgments  upon  his  public  conduct;  they  may 
even  call  upon  him  to  follow  their  instructions  and  warn 
him  that  if  he  disobeys  they  will  no  longer  trust  him  or 
reelect  him  to  represent  them.  But  he  is  to  act  —  not 
they.^* 

hostile  to  their  interest."  "Representative  Government,"  pp.  227-228.  On  the 
subject  of  pledges  see  also  Lieber,  "  Political  Ethics,"  vol.  II,  bk.  VI,  ch.  3.  Lord 
Brougham  observes  that  pledges  w^ere  common  in  Great  Britain  in  former  times, 
though  occasionally  candidates  refused  to  make  promises,  as  did  Macaulay,  in 
1832,  when  he  declared  to  a  political  committee  that  he  would  give  no  pledges 
under  any  circumstances. 

^  "Political  Science  and  Constitutional  Law,"  vol.  II,  p.  116. 

2  "The  British  Constitution,"  Works,  vol.  XI,  pp.  35-37. 


THE   MODERN   IDEA   OF   REPRESENTATION  485 

The  representative  under  normal  conditions  will  be  a  judgment 
wiser  person  than  the  average  of  those  whom  he  represents;  sentaUve" 
he  will  possess  the  advantage  of  experience  in  statecraft,  °"g^t 
and  probably  superior  knowledge  and  ability;  and  his  own  spected  by 
judgment,  therefore,  ought  to  be  regarded  with  respect  by  g^J^nts 
his  constituents.^     He  ought  not  to  be  obliged  to  conform 
his  action  to  their  opinions  or  to  vote  in  a  manner  which 
his  own  judgment,  aided  by  discussion  and  argument,  fully 
condemns.     It  is  seldom  the  case,  observes  an  able  writer 
on  this  subject,  that  the  people  are  capable  of  judging  wisely 
in  matters  of  legislation;  they  may  express  intelligent  opin- 
ions on  the  larger  questions  of  public  policy,  but  rarely  on 
matters  of  detail.^     Superior  powers  of  mind  and  profound 
study  are  of  no  use,  as  Mill  has  pointed  out,  if  they  do  not 
sometimes  lead  a  person  to  different  conclusions  from  those 
which  are  formed  by  ordinary  minds  without  study;  and  if 
it  be  an  object  to  possess  representatives  in  any  intellectual 
respect  superior  to  average  electors,  he  continues,  it  must 
be  counted  upon  that  the   representative  will   sometimes 
differ  in  opinion  from  the  majority  of  his  constituents,  and 
that  when  he  does  so,  his  opinion  will  most  frequently  be 
right.      It   follows   that  the  electors  will  not  do  wisely  if 
they  insist  on  absolute  conformity  to  their  opinions  as  the 
condition  of  a  representative's  retention  of  his  seat.^ 

*  "The  great  beauty  of  the  representative  system,"  said  Mr.  Macaulay,  speaking 
in  1832,  "is  that  it  unites  the  advantages  of  popular  control  with  the  advantage  aris- 
ing from  a  division  of  labor ;  just  as  a  physician  understands  medicine  better  than  an 
ordinary  man,  .  .  .  just  as  a  shoemaker  makes  shoes  better  than  any  ordinary  man,  a 
person  whose  life  is  passed  in  transacting  affairs  of  state  becomes  a  better  statesman 
than  an  ordinary  man.  .  .  .  My  opinion  is  that  electors  ought  at  first  to  choose 
cautiously,  then  to  confide  liberally;  and  when  the  term  for  which  they  have 
selected  their  member  has  expired,  to  review  his  conduct  equitably  and  to  pronounce 
on  the  whole  when  together." 

^  St.  Girons,  "La  Separation  des  Pouvoirs,"  p.  163. 

'"Representative  Government,"  ch.  12.  "When  the  difference  between  the 
judgment  of  the  electors  and  the  representative  is  not  fundamental,  the  elector  may 
well  consider,"  says  Mill,  "  that  when  an  able  man  differs  from  him  there  is  at 
least  considerable  chance  of  the  elector  being  in  the  wrong;  and,  even  if  otherwise, 
it  is  worth  considering  whether  he  may  not  give  up  his  opinion  for  the  sake  of  the 


486 


THE   LEGISLATIVE   DEPARTMENT 


New 
Demo- 
cratic 
View  of 
Office  of 
Repre- 
sentative 


Instruc- 
tion of 
United 
States 
Senators 


But,  as  Mill  observes,  democracy  is  not  favorable  to  the 
reverential  spirit.  In  modern  democratic  states  the  opin- 
ion prevails  among  the  masses  that  they  are  as  well  quali- 
fied to  judge  of  the  common  needs  as  those  whom  they 
have  chosen  to  speak  for  them.  There  is,  in  short,  a  tend- 
ency everywhere  to-day  to  regard  the  office  of  representa- 
tive in  a  very  different  light  from  that  described  above. 
His  function,  according  to  the  new  view,  is  not  to  interpret 
the  common  good  as  his  conscience  and  better  judgment 
dictate,  but  to  register  the  popular  interpretation  whether 
his  conscience  and  judgment  approve  or  not. 

In  the  United  States  the  doctrine  of  instruction  has  for 
the  most  part  related  to  the  right  of  the  state  legislatures 
to  instruct  United  States  senators  as  to  how  they  shall  vote 
on  particular  measures.  With  regard  to  representatives  in 
Congress,  the  right  of  instruction  has  rarely  been  asserted. 
The  latter  have  generally  been  considered  as  representatives 
of  the  people  without  any  of  the  plenipotentiary  character 
sometimes  attributed  to  senators.  Moreover,  not  being 
chosen  by  organized  political  bodies,  as  is  the  case  with 
senators,  there  is  no  organization  representing  the  people 
which  is  competent  to  formulate  Instructions.  To  some 
extent,  senators,  as  has  been  Intimated,  resemble  deputies 
or  delegates  more  than  representatives  do,  and  hence  the 
right  of  instruction  as  applied  to  them  is  more  easily  de- 
fended. But  they  are  not  ambassadors  of  the  states,  as 
was  once  claimed  by  the  particularistic  school  of  political 
thinkers.  They  do  not  bear  commissions  from  the  state 
governments;  they  are  not  paid  by  the  states,  nor  can 
they  be  recalled  at  the  pleasure  of  the  states  as  would 
be  the  case  If  they  possessed  the  diplomatic  character. 
Their  function  is  to  deliberate  and  legislate,  not  to  nego- 
tiate. The  analogy,  therefore,  between  the  ambassadorial 
office  and  the  senatorial  mandate  Is  extremely  shadowy 

inestimable  advantage  of  having  an  able  man  to  act  for  him  in  the  many  matters 
in  which  he  himself  is  not  qualified  to  form  a  judgment." 


THE  MODERN   IDEA   OF   REPRESENTATION  487 

and  superficial.  In  the  case  of  some  upper  chambers  in 
federal  states,  however,  such,  for  example,  as  the  German 
Bundesrath,  the  right  of  instruction  is  expressly  recognized 
in  the  constitution.  But  in  the  United  States,  the  consti- 
tution is  silent  in  regard  to  the  matter  and  the  question  is, 
therefore,  an  open  one.  In  a  number  of  instances  state 
legislatures  have  passed  resolutions  "requesting"  senators 
to  support  or  oppose  particular  measures,  and  in  a  few  in- 
stances resolutions  have  also  been  passed  "instructing" 
them  as  to  their  duty.  In  some  cases  the  instructions  have 
been  obeyed  and  in  others  disregarded.* 

There  is  no  means  of  enforcing  such  instructions  if  a  Argument 
senator  chooses  to  disregard  them,  for  the  senatorial  term  if^truc- 
is  fixed  by  the  constitution  and  no  right  of  recall  is  recog-  tions  for 
nized.  On  the  other  hand,  if  the  instructions  are  to  be 
considered  morally  binding  so  that  the  senator  is  in  honor 
bound  to  resign  his  seat  in  case  he  cannot  obey  them, 
then  the  constitutional  provision  fixing  the  term  is  mean- 
ingless, since  it  is  within  the  power  of  the  legislature  to 
compel  the  resignation  of  a  senator  by  giving  him  in- 
structions which  his  sense  of  honor  will  not  allow  him  to 
obey.  In  such  a  case,  the  right  of  instruction  in  effect 
becomes  a  right  of  recall.  Moreover  it  not  infrequently 
happens  that  one  or  both  of  the  senators  from  a  state  belong 
to  a  different  political  party  from  that  which  controls  the 
legislature,  in  which  case  an  assertion  of  the  right  of  in- 
struction would,  of  course,  be  absurd.  Suppose,  further- 
more, the  legislature  should  instruct  the  senator  to  advocate 
and  vote  for  a  measure  which  he  believed  to  be  clearly 

'  The  legislature  of  Virginia  in  1836  "instructed"  the  senators  from  that  state  to 
vote  for  the  expunging  resolution  then  before  the  United  States  Senate.  The  instruc- 
tions were  disobeyed  by  both  Senators  Benjamin  Watkins  Leigh  and  John  Tyler. 
Leigh  resigned,  but  Tyler  retained  his  seat,  regarding  the  instructions  as  contrary 
to  the  constitution.  In  1878  the  legislature  of  Mississippi  instructed  its  senators  to 
vote  for  the  Bland  Silver  Bill.  The  instructions  were  disobeyed  by  Senator  Lamar, 
who  defended  his  action  in  a  strong  address  to  the  people  of  the  state.  See  Mayes' 
"  Life  of  L.  Q.  C.  Lamar,"  p.  234. 


488  THE   LEGISLATIVE  DEPARTMENT 

unconstitutional.  Having  taken  an  oath  to  support  the 
constitution,  he  would  be  guilty  of  perjury  if  he  violated  his 
oath  and  disregarded  the  constitution.  He  is  a  guardian 
and  trustee  of  the  constitution  no  less  than  the  mouthpiece 
of  his  constituency,  and  his  obligation  to  the  former  is  un- 
questionably higher  than  his  duty  to  obey  the  temporary 
will  of  the  body  which  chooses  him.  It  would  not  be  claimed 
for  a  moment  that  the  legislature  could  instruct  a  senator 
as  to  how  he  should  vote  in  an  impeachment  trial,  yet  the 
deliberations  of  the  senate  on  many  questions  of  legisla- 
tive policy  have  a  semi-judicial  character,  the  wisdom  or 
expediency  of  a  particular  course  of  action  often  depending 
upon  facts  and  circumstances  not  within  the  knowledge 
of  the  body  giving  the  instructions.  The  legislator  should 
reach  his  conclusions  after  careful  study  and  in  the  light  of 
all  the  facts  brought  out  in  the  course  of  debate,  and  he 
ought  not  to  be  subject  to  the  instructions  of  a  body  which 
has  not  had  the  benefit  of  the  knowledge  which  comes  from 
discussion  and  elucidation.  "The  principle  is,"  says  Bur- 
gess, "that  each  senator  and  each  representative  represents 
the  whole  United  States,  according  to  his  own  intelligence 
and  judgment,  and  that  there  is  no  constituency  in  the 
United  States  which  can  demand  a  control  over  its  repre- 
sentative in  either  house  of  the  Congress,  or  require  his 
resignation."  ^  The  doctrine  of  instruction,  says  Lieber, 
is  "unwarranted;  inconsistent,  and  unconstitutional,"  and 
this  must  be  the  conclusion  of  every  one  who  studies  the 
question  in  all  its  bearings.^ 

^  "  Political  Science  and  Constitutional  Law,  '  vol.  II,  p.  50. 
*  "Political  Ethics,"  vol.  II,  p.  361      On  the  general  subject  of  instruction,  see 
Lieber,  pp.  324-362. 


CHAPTER  XV 

THE  ELECTORATE 

Suggested  Readings:  Benoist,  "La  Crise  de  I'Etat  moderne  (de 
rOrganisation  du  Suffrage  universel");  Bluntschli,  "Politik,"  bk. 
X,  chs.  I  and  2;  Bradford,  "Lessons  of  Popular  Government," 
vol.  I,  ch.  i;  CooLEY,  "Principles  of  Constitutional  Law,"^ch.  14; 
DuGUiT,  "Droit  constitutionnel,"  sees.  98-104;  also  his  "  L'Etat,  les 
Gouvernants  et  les  Agents,"  ch.  3;  Dupriez,  "L 'Organisation  du 
Suffrage  universel  en  Belgique,"  chs.  i  and  2;  Esmein,  "Droit  con- 
stitutionnel," third  ed.,  pp.  209-248;  Gumpiowicz,  "  Allgemeines 
Staatsrecht,"  bk.  I,  ch.  9;  Laveleye,  "Le  Gouvernement  dans  la 
Democratie,"  vol.  II,  bk.  IX;  Lecky,  "Democracy  and  Liberty," 
vol.  I,  ch.  i;  also  vol.  II,  ch.  10;  Maine,  "Popular  Government," 
ch.  i;  Mill,  "Representative  Government,"  ch.  8;  Posado,  "Tra- 
tado  de  Derecho  Politico,"  vol.  II,  bk.  V,  ch.  6;  Prins,  "  Esprit  du 
Gouvernement  democratique,"  ch.  3;  Rousseau,  "  Contrat  social," 
bk.  IV,  chs.  2  and  3;  Sidgwick,  "Elements  of  Politics,"  pp.  378-400; 
Story,  "Commentaries,"  vol.  I,  sees.  576-584;  Helen  Sumner, 
"Equal  Suffrage  in  Colorado  ";  Woolsey,  "Political  Science,"  vol. 
II,  pp.  110-113;  297-301. 

I.    THEORIES   OF   SUFFRAGE 

It  was  a  part  of  the  French  political  philosophy  of  the  Theories 
eighteenth  century  that  every  citizen  has  a  natural  and  in-  French 
herent  right  to  participate  in  the  choice  of  his  representa-  Revoiu- 
tives.     This  was  a  logical  consequence  of  the  French  con- 
ception that  sovereignty  is  the  general  will  and  that  this 
will  cannot  be  accurately  ascertained  and  expressed  unless 
all  the  citizens  are  allowed  to  participate  in  its  expression 
through  the  choice  of  representatives.^ 

"All  the  inhabitants,"  said  Montesquieu,  "...  ought  to 
have  a  right  of  voting  at  the  election  of  representatives, 
except  such  as  are  in  so  mean  a  situation  as  to  be  deemed 

'  Compare  Esmein,  "Droit  constitutionnel,"  p.  210. 
489 


49©  THE   ELECTORATE 

to  have  no  will  of  their  own."  ^  Rousseau  held  a  similar 
view.^  This  doctrine  was  powerfully  supported  by  Robes- 
pierre, Condorcet,  Petion,  Boissy  d'Anglas,  and  other 
Frenchmen  at  the  time  of  the  Revolution.  Sovereignty, 
said  Robespierre,  resides  in  all  the  people,  and  every  citizen, 
whoever  he  may  be,  should  have  a  share  in  the  representa- 
tion and  the  right  to  participate  in  the  formation  of  the 
law  by  which  he  is  bound  .^ 
French  Notwithstanding  the  general  prevalence  of  this  notion 

Prachce  j^^  France  in  the  eighteenth  century,  the  French  constitu- 
Eight-  tions  of  the  time  did  not,  as  a  matter  of  fact,  establish  the 
Century  principle  of  direct  and  unrestricted  suffrage.  The  national 
assembly  established  instead  a  system  of  indirect  election 
based  on  a  restricted  suffrage,  and  it  made  a  distinction 
between  active  and  passive  citizens,  the  latter  of  whom 
were  allowed  no  part  in  choosing  the  intermediate  electors.* 
In  1792,  however,  the  distinction  between  citoyens  actifs  and 
citoyens  passifs  was  abolished,  as  was  also  the  tax  qualifica- 
tion for  voting ;  the  age  requirement  was  reduced  to  twenty- 
one  years,  and  a  system  approaching  universal  manhood 
suffrage  was  substituted,  though  the  system  of  indirect 
election  was  retained.  The  constitution  of  the  year  III 
(1795)  reestablished  a  tax  qualification  for  voting  with- 
out specifying  the  amount;  in  1800  this  was  abolished  and 
the  principle  of  a  wide  suffrage  reestablished.  Under  the 
restoration,  in  18 14,  however,  France  went  to  the  extreme 
of  requiring  the  payment  of  a  tax  amounting  to  300  francs 
and  the  attainment  of  the  thirtieth  year  of  age  as  a  condition 
to  the  exercise  of  the  suffrage.^  The  Revolution  of  1830 
brought  about  a  reduction  from  300  to  200  francs  in  the 
amount  of  the  tax  contribution  required  of  electors  and  the 

*  "Esprit  des  Lois,"  bk.  XI,  ch.  6.  ^  "Contrat  social,"  bk.  IV,  ch.  2. 

'  For  the  views  of  the  French  Revolutionary  statesmen  on  this  question,  see 
E^mein,  p.   211;  Duguit,  p.  691;  and  Bluntschli,  "Politik,"  pp.  420-421. 

*  Constitution  of  1791,  Title  III,  ch.  i. 

*  Charter  of  1814,  art.  35.    For  a  review  of  the  history  of  suffrage  in  France,  see 
Esmein,  pp.  222-236;  and  Duguit,  sec.  99. 


THEORIES   OF   SUFFRAGE  491 

lowering  of  the  age  requirement  to  twenty-five  years  for 
members  of  the  lower  chamber.  Both  during  the  period  of 
the  Restoration  and  the  July  monarchy,  the  number  of  elec- 
tors in  proportion  to  the  population  was  exceedingly  small, 
and  this  became  the  cause  of  widespread  popular  discontent. 
A  movement  for  direct  universal  manhood  suffrage  became 
active  about  1840,  and  it  triumphed  in  1848  with  the  estab- 
lishment of  the  second  republic,  the  constitution  of  which 
declared  that  suffrage  should  be  direct  and  universal  and 
that  all  Frenchmen  twenty-one  years  of  age  and  in  the  en- 
joyment of  their  civil  rights  should  be  electors,  regardless  of 
the  amount  of  their  property.  This  system  was  continued 
under  the  second  empire  and  under  the  third  republic,  and  is 
still  in  existence. 

The  French  political  dogma  of  the  eighteenth  century,  Nature  of 
that  the  right  of  suffrage  is  a  gift  of  nature,  belonging  to  all  chise'^^' 
citizens  alike,  has  generally  been  rejected  as  a  false  and  per- 
nicious principle;  and  no  states,  not  even  France,  as  we 
have  shown,  have  in  practice  acted  wholly  on  such  a  prin- 
ciple. The  better  view  is  that  suffrage  is  not  a  natural 
right  of  all  men,  but  a  privilege  granted  by  the  state  to  such 
persons  or  classes  as  are  most  likely  to  exercise  it  for  the  pub- 
lic good.^  Nearly  all  electoral  systems  have  been  framed 
on  this  principle,  that  is,  they  have  conditioned  the  privilege 
upon  a  variety  of  considerations  to  be  explained  later.  In 
the  early  stages  of  the  evolution  of  the  representative  system 
the  restrictions  were  much  more  general  and  stringent  than 
they  are  to-day,  and  consequently  the  body  of  electors  was 
much  smaller  in  comparison  with  the  whole  number  of  in- 
habitants. 

*  Compare  Bluntschli  ("  Politik,"  p.  421),  who  justly  remarks :  "  Aber  das  Wahl- 
recht  im  Staate  tindfiir  Staatszivecke  ist  nicht  ein  natiirliches  Menschenrecht,  sondern 
ein  staatliches,  vom  Staate  abgeleitetes,  dem  Staate  dienendes  Recht.  Es  besteht  nicht 
auszer  dem  Staate  und  darf  nicht  bestehen  wider  den  Staat.  Nicht  ah  Menschen  son- 
dern als  Staatsbilrger  iiben  die  Wahler  dieses  Recht  aus.  Sie  haben  dieses  Recht  nicht 
aus  sich,  nicht  weil  ihre  personliche  Existenz  und  Entwickliing  es  erfordert,  sondern  sie 
haben  es  durch  die  Staaisver/assung  emp/angen  und  iiben  esim  Dienste  des  Staates  aus.'f 


492  THE   ELECTORATE 

Early  Re-  In  the  eighteenth  century,  and  indeed  far  into  the  nine- 
strictions  ^gg^th,  the  exclusion  of  the  non-property-owning  classes 
was  not  considered  inconsistent  with  the  prevaiUng  notions 
of  popular  government;  and  nowhere  outside  of  France  was 
there  any  considerable  number  of  statesmen  or  political 
writers  who  believed  that  government  by  the  masses  of  the 
people  was  practicable. 

In  England,  until  1832,  the  parliamentary  franchise  was 
limited  in  the  counties  to  freeholders  whose  landed  property 
was  of  the  annual  value  of  forty  shillings;  and  in  the 
eighteenth  century  the  value  of  forty  shillings  was  many 
times  what  it  is  to-day/  In  the  English  colonies  of 
America  freehold  qualifications  for  voting  were  common 
in  the  seventeenth  and  eighteenth  centuries,  and  in  a  num- 
ber of  them  religious  qualifications  also  existed.  The 
Massachusetts  charter  of  1691,  for  example,  limited  the 
suffrage  to  possessors  of  freeholds  of  the  annual  value  of 
forty  shillings  or  of  other  estates  to  the  value  of  forty 
pounds.^  Likewise  the  early  state  constitutions  generally 
restricted  the  right  of  voting  to  the  property-owning 
classes.  In  some,  like  New  Hampshire,  Delaware,  Georgia, 
and  Pennsylvania,  the  payment  simply  of  a  tax  was  re- 
quired, but  in  others  the  suffrage  was  restricted  to  owners 
of  land  of  an  annual  value  ranging  in  amount  from  three 
pounds  in  Massachusetts  to  fifty  pounds  in  New  Jersey.' 
Exten-  With  the  rapid  spread  of  democratic  ideas  after  1820, 

Suffrage^*  howcvcr,  restrictions  upon  the  suffrage  began  to  disappear, 
in  the         and  before  the  middle  of  the  century  practically  the  entire 
states         adult  white  male  population  was  in  the  enjoyment  of  the 
franchise.     Only  one  or  two  of  the  older  states  restricted 

^  See  Rogers,  "  Economic  Interpretation  of  History,"  p.  32. 

^  See  Courtlandt  F.  Bishop,  "History  of  Elections  in  the  Colonies,"  ch.  2;  also 
Lalor,  "Encyclopedia  of  Political  Science,"  art.  "Suffrage." 

'  For  a  summary  of  the  suffrage  requirements  in  the  early  state  constitutions,  see 
an  article  entitled  "The  First  State  Constitutions,"  by  W.  C.  Morey  in  the  "An- 
nals of  the  American  Academy  of  Political  and  Social  Science,"  vol.  IV,  pp. 
20-22  ;  also  Schouler,  "  Constitutional  Studies,"  pt.  I,  ch.  4. 


THEORIES   OF   SUFFRAGE  493 

the  right  to  vote  to  those  who  could  read  and  write,  though 
here  and  there  a  small  property  qualification  was  required. 
In  recent  years  some  of  the  Southern  states,  owing  to  the 
presence  of  a  large  ignorant  negro  population,  have  re- 
stricted the  suffrage  to  those  who  can  read  or  "  under- 
stand" the  state  constitution.  In  other  Southern  states 
the  privilege  of  voting  is  limited  to  those  who  own  a  small 
amount  of  property,  or  pay  a  poll  tax,  or  have  served  in  the 
Union  or  Confederate  armies  or  are  descended  from  those 
who  so  served,  or  were  voters  in  the  year  1867  or  are 
descendants  of  such  voters.'  Ability  to  read  and  write  is 
a  condition  to  the  exercise  of  the  suffrage  in  several  of  the 
Northern  and  Western  states  also. 

In  all  the  states  citizenship  of  the  United  States  or  a  Common 
declaration  of  intention  to  become  a  citizen  is  required^  as  tions^*^" 
well  as  residence  for  a  specified  period  in  the  state  and 
election  district  in  which  the  voter  offers  to  vote.  The 
attainment  of  the  twenty-first  year  of  age  is  a  universal 
requirement,  and  with  the  exceptions  to  be  noted  later  the 
right  of  suffrage  is  generally  restricted  to  persons  of  the 
male  sex.  A  common  requirement  also  is  that  the  voter's 
name  shall  be  inscribed  on  an  electoral  list,  or,  in  popular 
language,  he  shall  be  "registered." 

In  England,  as  a  result  of  successive  extensions  beginning  Restric- 
In  1832,  the  franchise  has  come  to  embrace  the  mass  of  the  England 
adult  male  population,  the  ratio  of  the  voters  to  the  total 
population  being  about  one  to  six.     Practically  the  only 
classes  of  adult  males  now  excluded  from  the  franchise  are 

*  For  a  summary  and  discussion  of  the  qualifications  for  voting  in  the  Southern 
states,  see  an  article  by  the  writer  in  the  "South  Atlantic  Quarterly,"  vol.  IV,  no.  3. 
See  also  an  article  by  John  C.  Rose  in  the  "American  Political  Science  Review,"  vol. 
I,  no.  I. 

'  In  the  following  states  aliens  who  have  declared  their  intention  of  becoming 
citizens  enjoy  the  right  of  suffrage  equally  with  citizens:  Arkansas,  Indiana,  Kansas, 
Missouri,  Nebraska,  South  Dakota,  Texas,  Oregon,  and  Wisconsin.  The  nat- 
uralization act  of  1906,  however,  in  order  to  prevent  the  wholesale  naturalization 
of  aliens  immediately  prior  to  elections,  prohibits  from  voting  in  federal  elections  all 
persons  who  have  been  naturalized  less  than  ninety  days  prior  to  such  elections. 


494  THE   ELECTORATE 

domestic  servants,  bachelors  living  with  their  parents  and 
occupying  no  premises  on  their  own  account,  and  persons 
whose  change  of  abode  deprives  them  of  a  vote/  In  the 
latter  class  are  included  vagrants,  artisans  who  move  about 
in  obedience  to  the  demands  of  trade,  and  many  professional 
persons  like  teachers  whose  calling  is  such  that  the  rule 
requiring  twelve  months'  occupation  often  excludes  them. 
Among  the  specifically  excluded  classes  are  peers  (except 
Irish  peers  who  are  members  of  Parliament),  aliens,  idiots, 
paupers,  convicts,  persons  employed  by  candidates,  and  a 
few  public  officers,  such  as  those  directly  concerned  with 
the  conduct  of  elections.  In  order  to  exercise  his  privilege 
the  name  of  the  voter  must  be  on  a  registration  list,  made 
up  in  the  first  instance  by  the  overseers  of  the  poor  in  each 
parish  and  revised  and  corrected  by  an  official  known  as  the 
revising  barrister. 
Restric-  In  France,  as  has  been  said,  practical  universal  manhood 

FrtmcT      suffrage  now  prevails  except  that  certain  individuals  are 
excluded,  such  as  persons  convicted  of  crime,  bankrupts, 
persons  under  guardianship,  and  persons  in  the  active  mili- 
tary or  naval  service.^ 
Restric-  The  suffrage  for  the  election  of  members  of  the  Reichstag 

the^conti-  ^^  ^^^  German  Empire  also  approaches  the  universal  man- 
nent  of  hood  Icvcl,  though  the  attainment  of  a  more  advanced  age 
is  required  than  in  America  or  England,  namely,  twenty- 
five  years.  The  franchise  is  restricted  wholly  to  Germans 
of  the  male  sex,  while  various  persons  are  excluded,  notably 
those  under  guardianship,  bankrupts,  paupers,  persons  who 
have  lost  their  civil  rights,  and  persons  who  are  in  the  active 

*  Lowell,  "The  Government  of  England,"  vol.  1,  p.  213.  For  a  clear  and  concise 
summary  of  the  subject,  see  Lowell,  ch.  9.  In  igo6,  the  total  number  of  voters 
registered  under  the  different  franchises  in  the  United  Kingdom  was  7,266,706,  the 
total  population  being  about  42,000,000.  They  were  distributed  among  the  different 
franchises  as  follows:  owners,  574,827;  occupiers,  6,357,817;  lodgers,  226,191; 
freemen,  etc.,  57,728;  universities,  45,150. 

*  The  number  of  voters  is  about  10,800,000,  out  of  a  total  population  of  about 
40,000,000. 


Europe 


THEORIES   OF   SUFFRAGE  495 

military  service.  The  names  of  all  voters  must  be  in- 
scribed on  an  electoral  list  for  a  certain  period  before  the 
election/  The  suffrage  in  the  several  German  states  varies 
widely,  but  usually  it  is  more  restricted  than  the  imperial 
franchise.  Such,  for  example,  is  the  three-class  system  of 
voting  in  Prussia,  according  to  which  the  voters  are  divided 
into  three  categories  on  the  basis  of  the  amount  of  taxes 
they  pay,  each  class  voting  separately  and  choosing  one 
third  of  the  intermediate  electors  by  whom  the  members 
of  the  Landtag  are  elected.  Under  this  arrangement  a  few 
large  taxpayers  in  an  election  district  possess  the  same  elec- 
toral power  as  a  large  number  of  voters  who  own  a  small 
amount  of  property.  The  same  system  is  applied  in  choos- 
ing municipal  councils  in  the  cities  and  villages  of  Prussia.^ 
Italy  almost  alone  of  the  European  states  requires  an 
educational  qualification  for  the  exercise  of  the  suffrage. 
For  the  election  of  members  of  the  Chamber  of  Deputies 

*  See  the  Imperial  Electoral  Law  of  May  31,  1869;  Howard,  "The  German  Em- 
pire," pp.  81-83 ;  Lowell,  "  Government  and  Parties  in  Europe,"  vol.  I,  pp.  252-253. 
The  broad  suffrage  established  for  the  empire  was  regarded  as  more  or  less  of  an 
experiment  by  the  founders  and  various  devices  were  provided  against  the  possible 
evils  which  it  was  feared  would  flow  from  the  system.  Such  were  the  non-payment 
of  members  of  the  Reichstag,  the  holding  of  elections  on  week  days  instead  of  Sun- 
days as  is  the  general  practice  on  the  continent  of  Europe,  and  the  denial  to  the  large 
cities  of  their  proportionate  share  of  representatives. 

^  Recently  widespread  dissatisfaction,  especially  among  the  working  class,  has 
developed  against  the  three-class  system  of  suffrage  in  Prussia.  On  the  i8th  of 
March,  1906,  an  imposing  demonstration  in  favor  of  universal  suffrage  took  place 
throughout  Prussia.  In  consequence,  the  government  brought  in  a  project  for  a  read- 
justment of  the  electoral  districts  and  an  augmentation  of  the  number  of  members  of 
the  Landtag,  but  retaining  the  three-class  system.  On  the  2d  of  April,  1906,  the 
Chamber  rejected,  by  a  vote  of  188  to  80,  a  liberal  proposition  looking  toward  the 
establishment  of  a  system  of  universal  suffrage.  On  February  7  of  the  same 
year  the  Reichstag  rejected  a  project  initiated  by  the  Socialists  providing  for  an 
amendment  to  the  imperial  constitution  establishing  direct  universal  suffrage  for 
all  Germans,  male  and  female  alike,  in  all  the  states  of  the  empire  including  Alsace- 
Lorraine.  The  government  in  opposing  the  measure  maintained  that  the  proposition 
was  in  contravention  of  the  federal  principle  of  the  German  empire.  See  "  Revue 
politique  et  parlementaire,"  1906,  p.  174.  Recently  Wiirtemberg,  Baden,  and 
Bavaria  have  introduced  systems  approximating  universal  manhood  suffrage.  See 
Duguit,  "Droit  constitutionnel,"  p.  708. 


496 


THE   ELECTORATE 


Recent 
Exten- 
sions in 
Europe 


The  Bel- 
gian 

System  of 
Plural 
Voting 


the  elector  must  have  passed  an  examination  on  the  sub- 
jects embraced  in  the  course  of  compulsory  education, 
though  the  examination  is  not  required  of  certain  classes 
who  could  obviously  pass  it,  such  as  the  members  of  learned 
societies,  college  graduates,  professional  men,  etc.;  nor  of 
those  who  pay  a  direct  tax  of  nineteen  lire  to  the  state  or 
who  pay  rents  of  a  certain  amount.^ 

In  Austria,  until  1907,  a  complicated  five-class  system 
prevailed,  according  to  which  the  voters  were  grouped  some- 
what as  in  Prussia  on  the  basis  of  the  amount  of  taxes  they 
paid.^  By  a  constitutional  amendment  adopted  in  1907, 
however,  the  five-class  system  was  abolished  and  virtual 
manhood  suffrage  was  established  for  the  election  of  all 
representatives  to  the  popular  chamber.'  In  Hungary,  by 
an  amendment  of  1907,  what  amounts  to  virtual  manhood 
suffrage  was  also  established,  though  there  are  some  dis- 
qualifications, notably  in  the  case  of  certain  public  officers.* 
In  Switzerland,  both  in  the  confederation  and  in  the  can- 
tons, the  suffrage  is  enjoyed  by  all  males  twenty  years  of 
age  except  the  clergy,  and  a  few  other  classes  who  are  unfit. 
Likewise  in  Greece  and  in  Spain  (since  1890)  virtual  man- 
hood suffrage  prevails. 

Belgium  in  1893  introduced  a  system  of  plural  voting. 
Every  male  citizen  twenty-five  years  of  age  and  a  resident 
at  least  one  year  in  the  commune  is  allowed  one  vote;  a 
supplementary  vote  is  allowed  to  every  man  who  has 
reached  the  age  of  thirty-five  years  and  has  legitimate  off- 
spring and  pays  a  tax  of  5  francs  to  the  state ;  also  to  every 
landed  proprietor  twenty-five  years  of  age  the  value  of 
whose  land  aggregates  at  least  2000  francs.  Two  supple- 
mentary votes  are  allowed   to  every  citizen    twenty-five 

*  The  total  number  of  voters  in  Italy  is  about  two  million  out  of  a  total  population 
of  about  33,000,000.  The  introduction  of  universal  manhood  suffrage  in  Italy  would 
increase  the  number  of  electors  to  about  eight  million.  A  widespread  agitation  in 
favor  of  a  more  extended  franchise  has  recently  been  inaugurated  in  that  country. 

*  Lowell,  "  Government  and  Parties  in  Europe,"  vol.  II,  p.  88. 

*  Dodd,  "Modern  Constitutions,"  vol.  I,  p.  77,  note  5.  *  Ibid.,  p.  106. 


THEORIES   OF    SUFFRAGE  497 

years  of  age  who  possesses  a  diploma  from  an  Institution 
of  higher  learning  or  a  certificate  showing  the  completion 
of  a  course  of  secondary  education;  or  who  holds  or  has 
held  a  public  office  or  who  practices  or  has  practiced  a  pri- 
vate profession  which  presupposes  that  the  holder  possesses 
at  least  a  secondary  education.  No  one,  however,  may 
have  more  than  three  votes  in  the  aggregate.^ 

The  Belgian  system  represents  an  effort  to  combine  the  Principle 
advantages  of   universal  suffrage  with  a  scheme  of  what  fj^^l^ihe 
Sidgwick  calls  "weighted  voting,"  with  a  view  to  mitigat-  System  of 
ing  the  evils  inherent  In  a  system  of  universal  suffrage  by  voting 
preventing  the  ignorant  and  uninstructed  mass  of  the  com- 
munity from  overriding  the  intelligent  and  capable  few. 
It  rests  on  the  assumption  that  there  are  some  individuals 
in  the  state  whose  votes  ought  to  be  given  a  greater  weight 
in  the  choice  of  public  officials  than  those  of  the  rest,  that 
while  every  one  ought  to  have  a  vote,  some  ought  to  have 
more  than  one.     It  recognizes,  in  short,  that  some  men  are 
wiser  and  better  fitted   to  choose,  and  that  some  men's 
opinions  should  count  for  more  than  others'  in  ascertain- 
ing the  general  will.     While  admitting  that  every  honest 
and  capable  citizen  should  be  allowed  a  share  in  choos- 
ing those  who  are  to  govern  him,  it  denies  that  every  one 
should  be  given  an  equal  share,  in  short,  that  the  judg- 
ment  of    the   Illiterate   and    Incapable   should   count   for 
less  than  that  of  the  capable  and  educated  voter.     The 
Belgian  system  takes  Into  consideration  the  elements  of 

*  Constitution,  art.  47.  Dodd,  "Modern  Constitutions,"  vol.  I,  pp.  132-133; 
and  Duguit,  op.  cit.,  p.  703.  For  an  elaborate  study  of  the  history  and  working  of 
the  Belgian  system  of  plural  suffrage,  see  Dupriez,  "Le  Suffrage  universel  en  Bel- 
gique,"  1901.  See  also  Desjardines,  "La  Libert^  politique  dans  I'Etat  moderne," 
p.  239  et  seq.  Esmein  ("  Droit  constitutionnel,"  p.  240)  criticises  the  method  of  plural 
voting  as  resting  on  a  principle  which  is  a  logical  contradiction.  If,  he  asks,  its 
purpose  is  to  counteract  the  evils  incident  to  the  incapacity  of  others  would  it  not  be 
logical  to  refuse  entirely  the  electoral  right  to  the  latter?  In  admitting  the  latter  to 
the  suffrage  the  law  recognizes  in  them  a  capacity.  Then  why  give  to  others  in  the 
exercise  of  the  same  function  a  superior  authority  ? 
POL,  SCI.  —  32 


498  THE   ELECTORATE 

property,  education,  family  relation,  and  occupation  or 
profession  in  determining  the  weight  of  a  man's  voice  in 
the  government.  It  assumes  that  the  vote  of  the  owner 
of  property  upon  which  taxes  are  paid  to  the  state  should 
count  for  more  than  the  vote  of  one  who  contributes  noth- 
ing to  its  support;  that  the  vote  of  the  man  who  has  added 
to  the  population  and  power  of  the  community  by  estab- 
lishing a  family  should  be  given  greater  weight  than  the 
vote  of  him  who  has  not;  and  that  the  share  of  the  citi- 
zen who  contributes  to  the  advancement  of  civilization 
by  practicing  a  profession  should  be  larger  than  that  of 
a  common  laborer,  etc.^ 
Objections  fhe  chicf  objection  to  such  a  system  of  suffrage  lies  in 
Voting  the  difficulty  of  finding  a  just  and  practical  standard  or 
criterion  by  which  the  weight  of  different  votes  may  be 
graduated.  Any  scheme  for  assigning  different  values 
to  the  votes  of  the  property  owner,  the  man  of  education, 
the  head  of  a  family,  the  professional  man,  etc.,  must  be 
largely  arbitrary.  The  possession  of  property,  for  exam- 
ple, is  often  the  result  of  accident  rather  than  of  thrift, 
economy,  or  capacity,  and  even  if  it  were  otherwise,  popu- 
lar opinion  is  so  averse  to  the  basing  of  political  rights 
upon  wealth  that  the  scheme  would  be  hard  to  defend  in 
a  democracy.  It  is  sometimes  said  in  support  of  the  argu- 
ment that  the  wealthy  have  more  interests  to  be  protected 

*  On  the  subject  of  plural  voting  in  general,  see  Benoist,  "La  Crise  de  I'Etat 
moderne,"  pp.  93-117.  The  system  of  plural  voting  was  formerly  employed  in 
England  in  vestry  elections  and  in  the  election  of  poor  law  guardians.  The  prin- 
ciple is  also  in  effect  retained  in  the  electoral  law  which  permits  a  voter  to  vote 
in  two  different  constituencies  provided  he  has  a  residence  in  each.  For  the  county 
and  university  franchise  residence  is  not  necessary,  and  even  in  the  boroughs 
where  it  is  required  it  is  possible  for  one  to  have  more  than  a  single  residence. 
Moreover,  since  residence  within  seven  miles  of  the  borough  satisfies  the  legal 
requirements,  one  who  lives  in  the  country  and  maintains  a  business  office  in 
the  borough  may  vote  in  both  places.  For  many  years  the  abolition  of  plural  vot- 
ing has  been  a  part  of  the  Liberal  programme,  and  in  1906  when  the  Liberal  party 
came  into  power  the  government  brought  in  a  bill  to  establish  the  principle  of  "one 
man  one  vote."  It  passed  the  House  of  Commons  but  was  rejected  by  the  House  of 
Lords.     See  Lowell,  "  Government  of  England,"  vol.  I,  pp.  214-215. 


THEORIES   OF   SUFFRAGE  499 

than  the  poor  and  should  therefore  be  given  a  propor- 
tionately larger  share  in  the  choice  of  those  who  govern.* 
But  to  this  it  may  be  replied  that  the  power  of  self-help 
among  the  rich  is  correspondingly  greater,  and  hence  the 
need  of  state  protection  is  less  than  in  the  case  of  the 
poor.  Weighted  voting  for  the  wealthy,  moreover,  tends 
toward  the  establishment  of  class  government  and  gov- 
ernment by  the  wealthy  few  at  that  —  the  most  obnoxious 
of  all  forms  of  government.  The  nature  of  one's  profes- 
sion or  occupation  is  regarded  by  some  as  a  fairly  just 
and  practical  test  for  determining  the  weight  of  a  vote. 
Thus  it  is  said,  an  employer  is  likely  to  possess  more  abil- 
ity and  intelligence  than  an  employee ;  a  banker,  a  merchant, 
or  a  manufacturer,  more  than  an  artisan ;  one  engaged  in  a 
learned  profession,  more  than  one  engaged  in  an  unskilled 
trade;  and  so  on.^ 

Thus  John  Stuart  Mill,  who  was  an  advocate  of   the  Mill's 
scheme  of  "weighted  voting,"  expressed  the  opinion  that  "wSght° 
two  or  more  votes  might  properly  be  allowed   to  every  f^^  Vo*- 
person  who  "exercises  any  of  these  superior  functions."' 
A  system  of  plural  voting  in  which  a  superior  weight  was 
assigned  to  the  vote  of  the  educated  man  was  strongly 

*  Compare  Sidgwick,  "Elements  of  Politics,"  p.  390. 

'  Sidgwick  remarks  that  the  "employer  or  manager  of  capital  has  nominally 
far  more  knowledge  than  his  employees  of  the  conditions  favorable  and  unfavorable 
to  the  industry  that  he  directs ;  and  in  defending  his  own  interests  he  will,  to  an  im- 
portant extent,  indirectly  defend  the  economic  interests  of  society  as  regards  this 
branch  of  industry." 

'"Representative  Government,"  Universal  Library  edition,  p.  168.  "When 
two  persons  who  have  a  joint  interest  in  any  business,"  said  Mill,  "  differ  in  opinion, 
does  justice  require  that  both  opinions  should  be  held  of  exactly  equal  value  ?  If 
with  equal  virtue,  one  is  superior  to  the  other  in  knowledge  and  intelligence  or  if 
with  equal  intelligence,  one  excels  the  other  in  virtue,  the  opinion,  the  judgment,  of 
the  higher  moral  or  intellectual  being  is  worth  more  than  that  of  the  inferior ;  and  if 
the  institutions  of  the  country  virtually  assert  that  they  are  of  the  same  value,  they 
assert  a  thing  which  is  not  true."  The  liberal  professions.  Mill  observed,  imply  a 
still  higher  degree  of  instruction,  and  whenever  a  sufficient  examination  or  any 
serious  conditions  of  education  are  required  before  entering  upon  a  profession  its 
members  should  be  admitted  at  once  to  a  plurality  of  votes. 


ing' 


500  THE   ELECTORATE 

recommended  by  Mill  as  a  "counterpoise  to  the  numerical 
weight  of  the  least  educated."  It  would  be  a  means,  he 
argued,  of  offsetting  the  "more  than  equivalent  evils"  of  a 
"completely  universal  suffrage."  In  any  system  providing 
a  widely  extended  suffrage  it  might  be  wise,  he  said,  "to 
allow  all  graduates  of  universities,  all  persons  who  have 
passed  creditably  through  the  higher  schools,  all  members 
of  the  liberal  professions,  and  perhaps  some  others  who 
registered  specifically  in  those  characters,  to  give  their 
votes  as  such  in  any  constituency  in  which  they  choose  to 
register;  retaining  in  addition  their  votes  as  simple  citizens 
in  the  localities  in  which  they  reside.  All  these  sugges- 
tions are  open  to  discussion  as  to  details;  but  it  is  evi- 
dent to  me  that  in  this  direction  lies  the  true  ideal  of 
representative  government,  and  that  to  work  toward  it 
by  the  best  practical  contrivances  which  can  be  found 
is  the  path  of  real  political  improvement."  ^  But  in- 
tellectual superiority  or  academic  training  is  not  always 
a  mark  of  political  capacity.  A  skillful  but  uneducated 
artisan  may  easily  possess  more  political  insight  and 
judgment  than  a  schoolmaster,  a  physician,  or  other  pro- 
fessional man  of  high  academic  training.  Political  privi- 
leges based  on  distinctions  of  superior  intelligence  are, 
moreover,  likely  to  be  arbitrary  and  invidious. 
Compui-  The  question  has  been  much  discussed  whether  one  who 
Suff'a  e  possesses  the  right  to  vote  ought  not  legally  to  be  required 
to  exercise  it,  just  as  the  citizen  is  compelled  to  serve  on 
juries  and  at  times  to  hold  certain  offices.  It  is  some- 
times asserted  that  voting  is  a  public  service,  a  civic  duty, 
for  the  neglect  of  which  a  penalty  ought  to  be  imposed; 
and  that,  especially  in  a  democracy,  the  participation  of 
all  citizens  in  elections  ought  to  be  obligatory,  otherwise 
the  election  returns  cannot  be  said  to  represent  the  real 
will  of  the  electorate.^     At   the  present   time,   however, 

•"Representative  Government,"  p.  171. 

*  Duguit  seems  to  take  this  view.     See  his  "  Droit  constitutionnel,"  pp.  91-92. 


THEORIES   OF   SUFFRAGE  501 

Belgium  and  Spain  are  the  only  countries  of  importance 
in  which  the  principle  of  compulsory  suffrage  has  been 
introduced  in  practice.  In  Belgium  it  has  been  in  opera- 
tion for  a  number  of  years/  and  in  Spain  it  was  introduced 
in  1908.  The  Spanish  law  on  the  subject  requires  all 
males  of  legal  age,  except  judges,  notaries,  priests,  and  men 
over  seventy  years  of  age  to  vote  unless  absent  or  sick. 
Failure  to  do  so  is  punishable  by  publication  of  the  name 
of  the  delinquent  as  a  mark  of  censure,  by  a  two  per  cent 
increase  of  his  taxes,  by  the  loss  of  one  per  cent  of  his 
salary  if  he  is  in  the  employ  of  the  state,  and  in  case  of 
repetition  of  the  offense,  by  the  loss  of  the  right  to  hold 
public  office  in  the  future. 

But  the  principle  of  obligatory  voting  has  not  generally  objections 
commended  itself  to  political  writers  or  statesmen.  It  as-  ^°^^q^' 
sumes  that  voting  is  a  public  legal  duty  instead  of  a  privi-  Suffrage 
lege  or  a  moral  duty.  However  reprehensible  may  be  the 
conduct  of  the  citizen  who  neglects  his  civic  obligations  and 
his  public  duties  as  a  member  of  society,  it  is  hardly  the 
province  of  the  state  to  punish  by  legal  means  the  non- 
performance of  such  duties.^  The  value  of  universal  suf- 
frage depends  on  its  being  regarded  at  once  as  a  privilege 
and  a  moral  duty.  If  it  were  required  by  law,  the  privi- 
lege would  be  exercised  as  a  mere  form  and  without  regard 
to  the  public  good,  very  much  as  it  was  by  the  sans-culottes 
of  Paris,  who  were  paid  for  their  attendance  during  the 
French  Revolution.  The  effect  would  be  a  marked  lower- 
ing of  the  character  of  the  privilege.  Moreover,  com- 
pulsory votes  would  be  much  more  open  to  bribery  and 
would  soon  come  to  be  estimated  by  their  market  value.' 

*  Constitution  of  Belgium,  art.  86.  The  French  law  of  Aug.  2,  1875  (art.  18), 
establishes  the  principle  of  obligatory  suffrage  for  the  election  of  senators  of  the 
republic. 

^  Compare  Lieber,  "Political  Ethics,"  vol.  II,  p.  230. 

^  Cf.  Bradford,  "  Lessons  of  Popular  Government,"  vol.  II,  p.  187.  For  a  strong 
criticism  of  the  principle  of  compulsory  suffrage,  see  Esmein,  "Droit  constitu- 
tionnel,"  pp.  216  ff. ;  see  also  Benoist,  "  La  Crise  de  I'Etat  moderne,"  pp.  49-55. 


502  THE   ELECTORATE 

II.     UNIVERSAL    SUFFRAGE 

Suffrage  It  IS  sometimes  claimed,  as  was  said  in  an  earlier  part 
a?aNat-  o^  this  chapter,  that  the  right  of  the  individual  to  par- 
urai  Right  ticipate  in  the  choice  of  representatives  is  a  right  inherent 
in  the  quality  of  citizenship;  that  it  is  one  of  the  natural 
rights  of  man,  indispensable  to  his  liberty,  and  a  logical 
necessity  if  the  doctrine  that  governments  derive  their 
just  powers  from  the  consent  of  the  governed  has  any  mean- 
ing. This  doctrine,  as  we  have  already  explained,  was  one 
of  the  cardinal  dogmas  of  the  French  political  philosophy 
of  the  eighteenth  century  and  still  has  many  advocates 
throughout  the  world.  According  to  this  view,  the  enjoy- 
ment of  the  franchise  contributes  to  the  dignity  and  self- 
respect  of  the  individual,  and  is  an  agency  of  political  edu- 
cation, as  well  as  a  powerful  instrument  for  interesting  the 
masses  in  public  affairs  and  attaching  them  to  the  loyal 
support  of  the  government.* 
Universal  The  doctrine  that  governments  derive  their  powers  from 
r"iect*ed*in  ^he  consent  of  the  governed  has,  however,  always  been 
Practice  construed  in  practice  as  having  important  limitations. 
No  one,  as  Judge  Story  has  well  remarked,  not  even  the 
most  strenuous  advocate  of  universal  suffrage,  has  ever 
yet  contended  that  the  privilege  should  be  absolutely 
universal ;  and  no  one  has  ever  been  sufficiently  visionary 
to  maintain  that  all  persons  of  every  age,  degree,  and 
character  should  be  entitled  to  vote  in  all  elections  for 
all  public  officers.^  As  a  matter  of  fact,  all  states,  even 
the  most  democratic,  restrict  the  suffrage  to  a  part  only 
of  their  population.  Most  of  them  deny  the  privilege, 
wholly  or  in  part,  to  females,  minors,  insane  persons,  and 
idiots;  practically  all  of  them  debar  those  who  have  been 

'  Lecky,  "Democracy  and  Liberty,"  vol.  I,  p.  i ;  Laveleye,  "Le  Gouvernement 
dans  la  Democratic,"  vol.  II,  bk.  IX,  ch.  i ;  Story,  "  Commentaries,"  vol.  I,  sec.  579 ; 
Sidgwick,  "Elements  of  Politics,"  pp.  383  et  seq.;  Montesquieu,  "Esprit  des 
Lois,"  bk.  XI,  ch.  6. 

^  "Commentaries,"  vol.  I,  p.  412;  cf.  also  Bluntschli,  "Politik,"  p.  422. 


UNIVERSAL   SUFFRAGE  503 

convicted  of  grave  crimes,  including  corrupt  practices  at  Excluded 
elections;  most  of  them  exclude  those  who  have  to  be  sup-  ^^*^^*^ 
ported  by  the  state ;  some  withhold  the  right  from  bank- 
rupts; others  deny  the  privilege  to  vagrants  and  even  to 
worthy  persons  who  do  not  have  a  fixed  residence  within 
the  electoral  district;  some  exclude  the  holders  of  certain 
offices,  particularly  those  whose  duties  are  connected  with 
the  management  of  election ;  others,  like  France,  Germany, 
and  Italy  (and  England  indirectly),  exclude  soldiers  in 
actual  military  service;  some  debar  persons  who  do  not 
own  property  or  pay  direct  taxes  to  the  state;  a  few  ex- 
clude illiterate  persons  on  the  ground  that  such  persons 
are  presumed  not  to  possess  the  requisite  intelligence  for 
the  wise  exercise  of  the  privilege,  etc.  The  truth  seems 
to  be,  says  Judge  Story,  that  the  right  of  voting,  like  many 
other  rights,  is  one  which,  whether  it  has  a  fixed  founda- 
tion in  natural  law  or  not,  has  always  been  treated  in  the 
practice  of  nations  as  a  strictly  civil  right  derived  from 
and  regulated  by  each  society  according  to  its  own  circum- 
stances.^ 

The  extent  to  which  the  privilege  may  be  wisely  allowed  Restric- 
depends  upon  the  general  intelligence  of  the  population,  ^and^d 
the  character  of  the  offices  to  be  filled  at  the  election,  the  for  wise 
political  training  of  the  people,  and  a  variety  of  other  cir-  of  Fran- 
cumstances.     The    best    democratic    thought   of   modern  *^^'^® 
times  favors  as  wide  an  extension  of  the  elective  franchise 
as  is  consistent  with  good  government,  and  certainly  the 
trend  of  recent  development  has  been  in  the  direction  of 
universal   manhood  suffrage.      Educational  and  property 
restrictions    have    almost    entirely    disappeared    both    in 
Europe  and  in  America.     Here  and  there,  however,  they 
still  prevail  in  moderate  form,  and  many  able  writers  de- 
fend them  not  only  as  consistent  with  popular  government 
but  as  legitimate  safeguards    against  inefficient   and  cor- 
rupt government.     Among  such  writers  we  may  mention 

*  "  Commentaries,"  vol.  I,  sec.  580. 


504 


THE   ELECTORATE 


Views  of 
John 
Stuart 
Mill 


Of  i"ions 
of  W.  E. 
H.  Lerky 


the  names  of  John  Stuart  Mill,  W.  E.  H.  Lecky,  Sir  Henry 
Maine,  Professor  Sidgwick,  Emile  Laveleye,  and  Johann 
Kaspar  Bluntschli. 

Mill  says,  "I  regard  it  as  wholly  inadmissible  that  any 
person  should  participate  in  the  suffrage  without  being  able 
to  read  and  write,  and,  I  will  add,  perform  the  common 
operations  of  arithmetic.  .  .  .  No  one  but  those  in  whom 
a  priori  theory  has  silenced  common  sense  will  maintain  that 
power  over  others,  and  over  the  whole  community,  should  be 
imparted  to  people  who  have  not  acquired  the  commonest 
and  most  essential  requisites  for  taking  care  of  themselves. 
...  It  would  be  eminently  desirable,  that  other  things 
besides  reading,  writing,  and  arithmetic  should  be  made  nec- 
essary to  the  suffrage;  that  some  knowledge  of  the  confor- 
mation of  the  earth,  its  natural  and  political  divisions,  the 
elements  of  general  history  and  of  the  history  and  institu- 
tions of  their  own  country,  could  be  required  of  all  elec- 
tors." ^  Mill,  however,  properly  maintains  that  where  the 
suffrage  is  made  to  depend  upon  ability  to  read  and  write, 
the  state  should  provide  as  a  matter  of  justice  the  means  of 
attaining  these  accomplishments  without  cost  to  the  poor, 
otherwise  the  requirement  becomes  a  hardship.  Mill  also 
defends  taxpaying  qualifications  as  legitimate  even  in  a 
democratic  state.  "It  is  important,"  he  asserts,  "that  the 
assembly  which  votes  the  taxes,  either  general  or  local, 
should  be  elected  exclusively  by  those  who  pay  something 
towards  the  taxes  imposed.  Those  who  pay  no  taxes,  dis- 
posing by  their  votes  of  other  people's  money,  have  every 
motive  to  be  lavish  and  none  to  economize.  .  .  .  The  vot- 
ing of  taxes  by  those  who  do  not  themselves  contribute  is  a 
violation  of  the  fundamental  principle  of  free  government; 
representation  should  be  coextensive  with  taxation." 

Lecky  in  his  "Democracy  and  Liberty"  dwells  upon 
the  dangers  of  government  by  the  ignorant  masses  and, 
like  Mill,  advocates  a  system  of  suffrage  which  will  give 

*  "Representative  Government,"  pp.  160-161. 


UNIVERSAL   SUFFRAGE  505 

some  consideration  to  education  and  property.  The  leg- 
islature, he  points  out,  is  essentially  a  machine  for  tax- 
ing, and  it  should  be  chosen  by  an  electorate  restricted 
mainly  to  those  who  contribute  the  taxes. ^  "One  of  the 
great  questions  of  politics  in  our  day,"  he  says,  "is  coming 
to  be,  whether,  at  the  last  resort,  the  world  should  be  gov- 
erned by  its  ignorance  or  by  its  intelligence."  The  idea 
that  the  "ultimate  source  of  power  should  belong  to  the 
poorest,  the  most  ignorant,  the  most  incapable,  who  are 
necessarily  the  most  numerous,  is  a  theory  which  assuredly 
reverses  all  the  past  experiences  of  mankind."  ^  The  elec- 
tion returns,  Lecky  goes  on  to  say,  very  rarely  represent 
real  public  opinion  because  under  a  system  of  universal 
suffrage  there  are  multitudes  who  never  contribute  any- 
thing to  public  opinion,  but  cast  their  votes  as  directed 
by  other  individuals  or  organizations,  or  at  haphazard, 
when  they  are  ignorant  of  the  candidates  and  issues.  One 
man  "will  vote  blue  or  yellow"  because  his  father  voted 
that  way,  without  reference  to  the  principles  involved; 
others  are  governed  by  prejudices,  and  so  on.  "A  bad 
harvest  or  some  other  disaster  over  which  the  government 
can  have  no  more  influence  than  over  the  march  of  the 
planets,"  he  observes,  "will  produce  a  discontent  that  will 
often  govern  dubious  votes  and  may  perhaps  turn  the 
scale   in   a   nearly   balanced   election."  ^     Lecky   predicts 

'  Lecky  defends  the  restricted  suffrage  which  prevailed  in  England  before  1867. 
It  is  doubtful,  he  says,  whether  the  world  ever  saw  a  better  constitution  than  that  of 
England  from  1832  to  1867.  "  Few  parliamentary  governments,"  he  declares,  "  have 
ever  had  more  talent  or  represented  more  faithfully  the  various  interests  and  opinions 
of  a  great  nation  or  maintained  under  many  trying  circumstances  a  higher  level  of 
political  purity  and  patriotism."     "  Democracy  and  Liberty,"  vol.  I,  p.  18. 

"  "Democracy  and  Liberty,"  vol.  I,  p.  21. 

*  Ibid.  For  a  summary  of  the  strange  workings  of  universal  suffrage  in  France 
between  1848  and  1871,  see  Lecky,  pp.  29-34.  The  history  of  universal  suffrage 
in  France,  says  Lecky,  "furnishes  an  impressive  illustration  of  the  truth  that  uni- 
versal suffrage  wholly  fails  to  represent  the  best  qualities  of  the  nation."  Few 
governments,  he  continues,  have  been  more  lavishly  and  criminally  extravagant 
than  those  which  have  emanated  from  universal  suffrage  in  France  (p.  46). 


So6  THE   ELECTORATE 

that  the  day  will  come  when  it  will  appear  to  be  "one  of 
the  strangest  facts  in  the  history  of  human  folly"  that  the 
theory  that  the  best  way  to  improve  the  world  and  secure 
national  progress  by  placing  the  government  under  the 
control  of  the  least  enlightened  classes  should  have  once 
been  regarded  as  liberal  and  progressive. 
Sir  Henry  In  considering  the  attitude  of  the  ignorant  masses  toward 
Criticism  Scientific  progress,  Sir  Henry  Maine,  one  of  the  most  power- 
ful critics  of  popular  government,  affirms  somewhat  extrav- 
agantly that  "universal  suffrage,  which  to-day  excludes 
free  trade  from  the  United  States,  would  certainly  have 
prohibited  the  spinning  jenny  and  the  power  loom.  It 
would  certainly  have  prohibited  the  threshing  machine. 
It  would  have  prevented  the  adoption  of  the  Gregorian 
calendar,  and  it  would  have  restored  the  Stuarts.  It 
would  have  proscribed  the  Roman  Catholics  with  the  mob 
which  burned  Lord  Mansfield's  house  and  library  in  1780, 
and  it  would  have  proscribed  the  Dissenters  with  the  mob 
which  burned  Dr.  Priestley's  house  and  library  in  1791."^ 
Opinion  of  The  Belgian  publicist  Emile  Laveleye,  another  critic  of 
universal  suffrage,  while  admitting  its  advantages  in  dig- 
nifying the  individual  and  affording  a  means  for  the 
political  education  of  the  masses,  yet  asserts  that  under 
a  parliamentary  system  of  government  it  would  lead  to 
the  "loss  of  liberty,  of  order,  and  of  civilization."  He 
compares  the  government  of  a  modern  state  to  a  delicate 
machine  prodigiously  complex  and  extremely  difficult 
to  operate.  "How  can  such  a  machine,"  he  asks,  "be 
operated  by  the  ignorant  and  uninterested?"  "If  I  have 
to  choose  between  two  absurdities,"  he  says,  "I  prefer 
the  infallibility  of  the  pope  to  that  of  the  people.  The 
partisans  of  the  new  Catholic  dogma  do  not  invoke  reason ; 
they  believe  in  the  supernatural.  But  the  partisans  of  the 
sovereignty  of  the  masses  do  not  invoke  mystery;  they 
affirm  a  visible,  palpable  nonsense,  namely,  that  the  people, 

*  "Popular  Government,"  p.  36. 


Emile 
Laveleye 


UNIVERSAL   SUFFRAGE  507 

half  of  whom  can  neither  read  nor  write,  are  capable  of 
rendering  an  intelligent  judgment  upon  grave  questions 
of  legislation."  ^ 

But  notwithstanding  the  unfavorable  opinion  of  such  The 
writers  as  those  quoted  above,  the  movement  in  the  direc-  ^"*"" 
tion  of  a  complete  enfranchisement  of  the  masses  continues 
without   abatement,  and   hardly  anywhere   has   it   made 
greater  progress  in  recent  years  than  on  the  continent  of 
Europe.     Nothing  has  occurred  in  Europe  or  America  since 
the  beginning  of  this  movement  to  warrant  the  belief  that 
the  extravagant  prophecies  of  Lecky  and  Maine  regard- 
ing the  future  of  democratic  government  under  an  extended 
suffrage  are  ever  likely  to  come  to  pass.     In  consequence 
of   the   extraordinary   interest   now   being   manifested   in 
public  education  throughout  the  world  and  the  rapid  mul- 
tiplication by  governments,   monarchical  and   republican 
alike,  of  the  facilities  for  educating  the  masses,  there  is 
every  reason  for  believing  that  the  democracy  of  the  future 
will  not  necessarily  be  government  by  those  whom  Lecky 
characterized   as  the   "most  ignorant  and   the  most  in- 
capable."     Nevertheless,    their   warnings   concerning   the 
dangers  of  an  extended  suffrage  are  not  to  be  taken  lightly. 
The  truth  of  much  of  what  they  have  said  regarding  the 
incapacity  of  the  ignorant  masses  for  self-government  is 
abundantly  established  by  reason  and  the  experience  of  the 
past.     If  government  by  the  whole  people  is  to  be  a  success,   Condi- 
they  must  be  fitted  and  made  capable  for  self-government,  success 
To  vest  the  power  of  choosing  those  who  are  to  rule  the  of  an 
state  in  the  hands  of  the  incapable  and  unworthy  classes,   suffrage 
as  Bluntschli  justly  remarks,  would  mean  state  suicide.^ 
Give  the  suffrage  to  the  ignorant,  says  Laveleye,  and  they 
will   fall   into    anarchy   to-day   and    into    despotism    to- 
morrow.'    Whatever  the  truth  in  either  proposition  we 

•  "Le  Gouvernement  dans  la  Democratic,"  vol.  II,  pp.  51-52. 
'"Politik,"  p.  422. 

•  "  Le  Gouvernement  dans  la  D^mocratie,"  vol.  I,  p.  326. 


5o8  THE   ELECTORATE 

should  do  well  to  heed  the  saying  of  John  Stuart  Mill  that 
universal  teaching  must  precede  universal  enfranchisement. 


III.    WOMAN   SUFFRAGE 

Begin-  Hand  in  hand  with  the  spread  of  democracy  and  the 

the^Move-  extension  of  the  suffrage  to  the  masses  of  the  male  popu- 
ment  for     lation  has  gone   the  movement  for    the  political  enfran- 

the  En-  .  . 

franchise-  chiscmcnt  of  womcu.  At  the  time  of  the  French  Revolu' 
Women  ^^*^^'  wheu  the  dogma  of  universal  suffrage  was  at  its  height 
of  popularity,  a  petition  was  presented  to  the  National 
Assembly  asking  for  an  extension  of  the  right  of  voting  to 
women,  and  it  received  the  support  of  men  like  Condorcet 
and  others.  It  was  said  that  if  voting  was  a  natural  right 
of  the  citizen,  it  ought  not  to  be  denied  to  women.  In 
more  recent  times  it  has  been  advocated  by  Jeremy  Ben- 
tham,  Thomas  Hare,  Professor  Sidgwick,  and  J.  S.  Mill  in 
England,  by  Laboulaye  in  France,  and  by  many  men  of 
note  in  America.  For  a  long  time,  however,  after  the  dem.o- 
cratic  movement  had  resulted  in  the  political  enfranchise- 
ment of  the  masses  of  the  male  population,  women  were 
wholly  excluded  from  the  suffrage  in  all  countries,  even  the 
most  democratic.  Restriction  of  the  right  to  vote  exclu- 
sively to  males  was  not  regarded  as  at  all  inconsistent  with 
the  principle  of  democratic  government,  or  with  the  doc- 
trine of  the  consent  of  the  governed.  Soon  after  the  middle 
of  the  nineteenth  century,  however,  the  prevailing  ideas  in 
regard  to  the  expediency  of  granting  the  franchise  to  females 
underwent  a  marked  change,  and  slowly  one  American  state 
after  another  began  to  experiment  with  it  on  a  small  scale. 
At  first  adopted  only  for  certain  local  elections,  the  prin- 
ciple was  gradually  extended,  until  recently  its  spread  has 
advanced  by  leaps  and  bounds;  and  the  signs  now  indi- 
cate that  in  the  near  future  women  will  be  given  the  full 
right  of  suffrage  equally  with  men,  in  all  elections  without 
exception. 


WOMAN   SUFFRAGE  509 

In  England  at  the  present  time  women  possess  the  fran-  Female 
chise  equally  with  men  for  practically  all  except  parlia-  f^  E^n|® 
mentary  elections,  and  are  eligible  to  various  local  offices  land  and 
such  as  that  of  mayor,  alderman,  and  member  of  municipal  colonies 
and  county  councils.  Both  the  Conservative  and  Liberal 
parties  have  at  different  times  adopted  resolutions  in  favor 
of  extending  the  franchise  to  women  for  all  elections,  and 
the  Labor  party,  now  quite  strong  in  England,  has  made 
the  question  a  leading  part  of  its  program.  Recently  the 
women  have  conducted  a  vigorous  agitation  in  favor  of 
the  parliamentary  franchise  for  themselves  and  have  made 
a  number  of  imposing  demonstrations  in  the  vicinity  of 
the  houses  of  Parliament.  The  signs  seem  to  indicate  that 
ultimately  their  demands  will  be  granted,  for  certainly  the 
movement  in  that  country  is  making  great  headway  at  the 
present  time.^  In  the  Commonwealth  of  Australia  women 
possess  the  federal  franchise  as  well  as  the  right  of  member- 
ship in  the  commonwealth  parliament  equally  with  men; 
and  in  the  states  of  South  Australia,  New  South  Wales,  West 
Australia,  Victoria,  and  Queensland  they  possess  full  state 
suffrage.  Likewise,  in  Tasmania  and  New  Zealand  they 
are  on  a  footing  of  equality  with  men  so  far  as  the  right 
of  voting  is  concerned.  In  Norway  and  Finland  the  fran- 
chise has  been  granted  to  women  for  all  parliamentary  and 
municipal  elections  on  the  same  terms  as  to  males ;  and  in 
Finland  they  are  eligible  to  all  offices  In  the  state,  and,  in 
fact,  are  frequently  chosen  to  the  Parliament.^  In  all  the 
provinces  of  Canada  widows  and  spinsters  have  either  the 
municipal  or  school  franchise,  or  both;  and  In  the  north- 
west provinces  all  women,  married  and  unmarried  alike, 
possess  both  franchises  equally  with  men. 

In  the  United  States,  Colorado,  Idaho,  Utah,  and  Wyo-  Female 
ming  allow  full  suffrage  to  women  under  the  same  conditions  £^the^* 
as  to  men ;  in  Delaware,  Connecticut,  Illinois,  Kansas,  Louisi-  United 

States 
'  Cf.  Lowell,  "  Government  of  England,"  vol.  I,  p.  217. 
*  In  1907  nineteen  women  occupied  seats  in  the  Parliament  of  Finland. 


5IO 


THE   ELECTORATE 


Argu- 
ments in 
Favor  of 
Woman 
Suffrage 


Sex  not 
a  Proper 
Test  for 
determin- 
ing the 
Privilege 


ana,  Michigan,  Minnesota,  Massachusetts,  Montana,  North 
and  South  Dakota,  New  York,  New  Hampshire,  Ohio,  Ore- 
gon, Oklahoma,  Wisconsin,  and  Vermont  they  possess  the 
franchise  in  school  elections;  in  Arizona,  Kansas,  Mon- 
tana, New  Jersey,  and  North  and  South  Dakota  they  are 
allowed  to  vote  in  municipal  elections;  in  Iowa,  Louisiana, 
Kansas,  Montana,  and  New  York  they  may,  if  taxpayers, 
vote  on  proposed  bond  issues.  In  the  United  States  and 
in  many  parts  of  Europe  organized  movements  are  being 
conducted  for  the  further  extension  of  the  suffrage  to 
women,  and  a  number  of  associations  are  actively  agitating 
the  question  through  the  press  and  from  the  platform. 
Several  organizations,  international  in  scope,  have  also 
been  formed  for  the  purpose  of  aiding  the  propaganda. 
In  Denmark,  the  Netherlands,  and  Sweden,  further  exten- 
sions are  likely  to  be  made  at  an  early  date.  It  is  worth 
mentioning  also  that  few  or  no  states  that  have  once 
granted  the  suffrage  to  women  have  withdrawn  it. 

The  principal  arguments  advanced  in  favor  of  the  po- 
litical enfranchisement  of  women  are  the  following:  First, 
differences  of  sex,  it  is  maintained,  do  not  constitute  a 
logical  or  rational  ground  for  granting  or  withholding  the 
suffrage  to  a  citizen  who  is  otherwise  qualified;  in  short, 
the  criterion  for  determining  the  right  is  not  physical,  but 
moral  and  intellectual.  Thus  says  Sidgwick:  "I  see  no 
adequate  reason  for  refusing  the  franchise  to  any  self-sup- 
porting adult,  otherwise  eligible,  on  the  score  of  sex  alone; 
and  there  is  a  danger  of  material  injustice  resulting  from 
such  refusal  so  long  as  the  state  leaves  unmarried  women 
and  widows  to  struggle  for  a  livelihood  in  the  general  in- 
dustrial competition  without  any  special  privileges  or  pro- 
tection."^ In  short,  one  capable  citizen  is  as  much  entitled 
to  participate  in  the  choosing  of  those  who  govern  as 
another,  and  sex  should  have  nothing  to  do  in  determining 

'"Elements  of  Politics,"  p.  384.  Cf.  also  Duguit,  "Droit  constitutionnel," 
P-  93- 


WOMAN   SUFFRAGE  511 

the  rights.*  "I  consider  it  entirely  irrelevant  to  political 
rights,"  says  John  Stuart  Mill,  "as  difference  in  the  color 
of  the  hair.  ...  If  there  be  any  difference,  women  require 
it  more  than  men,  since,  being  physically  weaker,  they  are 
more  dependent  on  law  and  society  for  protection."^ 

In  the  second  place,  it  is  urged  that  women  should  be  The 
given   the   franchise  as  a   means  of  self-protection  —  not  a^jj^ces* 
necessarily   that   they  may   govern,    but   that   they  may  sityfor 
defend  themselves  against  the  unjust  class  legislation  to  tection 
which  it  is  alleged  they  are  frequently  subjected.     Laws 
concerning  the  rights  of  women,  remarks  Laveleye,  ought 
not  to  be  made  by  men  alone. ^     In  short,  considerations 
of  justice  require  that  government  of  both  men  and  women 
should  not  be  government  by  men  alone.     The  force  of 
this  argument  possesses  added  weight  on  account  of  the 
character  of  modern  industrial  and  social  conditions  under 
which  women  live.     They  are  to-day  competing  with  men 
side  by  side  in  nearly  every  trade  and  occupation  and  in 
many  of  the  learned  professions.*     Therefore,  the  plea  that 
the  wage-earner  should  be  given  the  ballot  as  a  defense 
against  his  employer  applies  with  equal,  if  not  stronger, 
force  to  the  argument  for  woman  suffrage.^ 

*  "If,"  observes  Judge  Story,  "it  be  said  that  all  men  have  a  natural,  equal,  and 
inalienable  right  to  vote  because  they  are  all  born  free  and  equal ;  that  they  all  have 
common  rights  and  interests  entitled  to  protection  and  therefore  an  equal  right  to 
decide,  either  personally  or  by  their  chosen  representatives,  upon  the  laws  and  regula- 
tions which  shall  control,  measure,  and  sustain  those  rights  and  interests  —  what  is 
there  in  those  considerations  which  is  not  equally  applicable  to  females,  as  free, 
intelligent,  moral,  responsible  beings  entitled  to  equal  rights  and  interests  and  pro- 
tection and  having  a  vital  stake  in  all  the  regulations  and  laws  of  society  ?"  "  Com- 
mentaries," vol.  I,  sec.  579. 

*"  Representative  Government,"  p.  175. 

*  "Le  Gouvernement  dans  la  Democratie,"  vol.  II,  p.  61. 

*  In  1836  only  seven  vocations  in  the  United  States  were  open  to  women,  namely, 
teaching,  and  the  occupations  of  governess,  seamstress,  dressmaker,  factory  em- 
ployee, and  domestic  servant.  In  1900,  according  to  the  census  reports,  4,833,630 
women  were  engaged  in  gainful  occupations. 

*  "There  is,"  says  Mill,  "something  more  than  ordinarily  irrational  in  the  fact 
that  when  a  woman  can  give  all  the  guarantees  required  from  a  male  elector,  inde- 


512 


THE   ELECTORATE 


Political 
Enfran- 
chisement 
should  fol- 
low Civil 
Enfran- 
chisement 


In  the  third  place,  it  is  urged  that  the  poHtical  en- 
franchisement of  women  ought  to  follow  naturally  and 
logically  their  civil  enfranchisement.  Nearly  everywhere 
the  old  civil  and  legal  disabilities  of  women  have  dis- 
appeared; they  are  now  capable  of  owning  property,  en- 
tering into  contracts,  and  engaging  in  all  gainful  occupa- 
tions equally  with  men.  The  old  arguments  upon  which 
they  were  formerly  denied  equal  civil  rights  with  men  are 
largely  the  same  as  those  which  are  now  relied  upon  to 
justify  the  denial  to  them  of  political  rights  and  privileges. 
If  they  are  capable  of  managing  their  own  business  affairs, 
of  entering  into  contractual  relations,  of  competing  with 
men  in  the  professions  and  occupations,  of  teaching  them  in 
the  schools  and  colleges,  they  are  capable  of  sharing  with 
men  the  exercise  of  political  privileges  and  rights.  It  is 
difficult  indeed  to  defend  a  theory  which  permits  the  shift- 
less, improvident,  and  non-taxpaying  male  to  have  a  voice 
in  legislation,  particularly  when  its  purpose  is  to  impose 
burdens  upon  the  taxpayers,  but  denies  a  vote  to  the  self- 
supporting  unmarried  woman  who  owns  property  and  con- 
tributes to  the  financial  support  of  the  state.  The  disa- 
bility, it  is  further  contended,  is  inconsistent  with  the  right 
of  women  in  many  countries  to  occupy  thrones  and  reign 
over  millions  of  subjects.  In  this  connection  we  are  re- 
minded that  women  have  made  able  rulers  wherever  they 
have  occupied  thrones.  Elizabeth  and  Victoria  In  Eng- 
land, Maria  Theresa  in  Austria,  and  Catherine  in  Russia 
are  among  the  notable  examples  cited.  Indeed,  says  Mill, 
in  an  argument  for  the  enfranchisement  of  women,  "the 
most  glorious  ruler  that  Great  Britain  ever  had  was  a 
female." ' 

pendent  circumstances,  the  position  of  a  householder  and  head  of  a  family,  payment 
of  taxes,  or  whatever  may  be  the  conditions  imposed,  the  very  principle  and  system  of 
a  representation  based  on  property  is  set  aside,  and  an  exceptionally  personal  dis- 
qualification is  created  for  the  mere  purpose  of  excluding  her."  "Representative 
Government,"  p.  179. 

'  "Representative  Government"  p.  170. 


WOMAN   SUFFRAGE  513 

In  the  fourth  place,  it  is  argued  that  the  admission  of  woman 
women  to  a  share  in  the  management  of  political  affairs  ^ou[d1n- 
would  inure  to  the  common  good  by  introducing  into  troduce 
public  life  a  purifying,  ennobling,  and  refining  influence  ucLifea 
that  would  not  only  tend  to  elevate  the  tone  of  public  life  ^""fyi^e 
and  bring  about  more  wholesome  political  conditions  in 
society,  but  would  insure  better  government.  In  other 
words,  society  would  gain  by  the  change.  It  is  generally 
admitted  that  women  are  morally  the  superiors  of  men, 
and  that  their  influence  would  make  for  decency,  righteous- 
ness, and  purity  in  politics.  Many  instances  are  cited  by 
the  advocates  of  sufi^rage  for  women  to  show  that  in  coun- 
tries where  they  have  been  given  the  franchise  they  have 
wielded  a  decisive  influence  in  securing  the  enactment  of 
advanced  social  legislation,  particularly  as  regards  such 
matters  as  child  labor,  the  employment  of  women  in  fac- 
tories, the  public  health,  tenement  houses,  the  sale  of  liquor, 
public  libraries,  better  educational  facilities,  pure  food  leg- 
islation, and  similar  matters.  Nobody,  observes  Mill,  pre- 
tends to  think  that  women  would  make  a  bad  use  of  the 
suffrage.  "The  worst  that  can  be  said,"  he  continues,  "  is 
that  they  would  vote  as  mere  dependents  at  the  bidding  of 
their  male  relations.  If  it  be  so,  let  it  be.  If  they  think 
for  themselves,  great  good  will  be  done,  and  if  they  do  not, 
no  harm.  It  is  a  benefit  to  human  beings  to  take  off  their 
fetters,  even  if  they  do  not  desire  to  walk.  It  would  al- 
ready be  a  great  improvement  in  the  moral  position  of 
women  to  be  no  longer  declared  by  law  incapable  of  an 
opinion,  and  not  entitled  to  a  preference,  respecting  the 
most  important  concerns  of  humanity.  There  would  be 
some  benefit  to  them  individually  in  having  something  to 
bestow  which  their  male  relatives  cannot  exact,  and  are 
yet  desirous  to  have.  It  would  also  be  no  small  thing  that 
the  husband  would  necessarily  discuss  the  matter  with 
his  wife,  and  that  the  vote  would  not  be  his  exclusive 
affair,  but  a  joint  concern." 

POL.  SCI. —33 


514 


THE   ELECTORATE 


Argu- 
ments 
against 
Female 
Suffrage 


It  would 
tend  to 
destroy 
Feminine 
Qualities 


It  would 
tend  to 
introduce 
Discord 
into  the 
Home 


Among  the  principal  reasons  advanced  against  the  politi- 
cal enfranchisement  of  woman  is  that  active  participation 
in  public  life  would  tend  to  destroy  her  feminine  qual- 
ities. Those  who  hold  this  view  maintain  that  the  func- 
tion of  maternity  is  woman's  peculiar  mission,  and  that 
the  home  rather  than  the  political  arena  is  her  natural 
sphere.  Her  nature  unfits  her  for  engaging  in  political 
affairs;  if  she  allows  herself  to  be  drawn  away  from  the 
home  by  the  distractions  of  the  political  campaign,  the 
household  of  which  she  is  the  guardian,  and  the  young 
which  it  is  her  high  mission  to  bear  and  rear,  will  be 
neglected.  In  short,  the  exactions  of  political  life  are  in- 
consistent with  the  duties  of  child-bearing  and  the  rearing 
of  families.  Woman  suffrage  strikes  at  the  integrity  of  the 
home  and  leads  to  the  lowering  of  family  life,  says  Blunt- 
schli,  for  upon  the  wife  more  than  upon  the  husband  de- 
pends the  welfare  of  the  family.  It  is  impossible,  he  says 
for  man  to  revere  and  honor  a  "political  woman."  Only 
man,  he  quotes  Aristotle  as  saying,  was  intended  for 
political  life.  Moreover,  since  the  family  cannot  be  ex- 
pected always  to  vote  as  a  unit,  female  suffrage  would  tend 
to  introduce  discord  and  dissension  in  the  home  by  setting 
each  member  against  the  other.  On  the  other  hand,  if 
the  wife  voted  according  to  the  advice  or  dictation  of  the 
husband,  her  vote  would  be  merely  a  duplication  of  the 
husband's,  and  nothing  would  be  gained  by  giving  her 
the  ballot.  In  this  case,  says  Bluntschli,  it  would  be  wiser 
to  give  the  husband  two  votes,  leaving  to  the  wife  the  right 
of  exerting  her  powerful  influence  but  without  the  duty 
and  responsibility  of  participating  in  the  election  herself. 
Both  Bluntschli  and  Laveleye  maintain  that  the  en- 
franchisement of  women  in  Catholic  lands  would  open 
the  way  to  the  rule  of  the  Jesuit  class,  since  their  votes 
would  be  effectually  controlled  by  the  priests  of  the  Catholic 
church.  The  Kulturkampf  struggle  between  state  and 
church  in  Germany,  observes  Bluntschli,  abundantly  showed 


WOMAN   SUFFRAGE  515 

that  the  opinions  of  the  female  population  were  easily  con- 
trolled by  Catholic  priests  and  that  had  women  possessed 
the  suffrage  equally  with  men  the  struggle  would  have 
terminated  in  favor  of  the  church/ 

It  is  said  by  some  opponents  of  female    suffrage  that  Military 
since  women  are    physically  incapable  of  discharging  all  f^^n® 
the  duties  and  obligations  of  citizenship  which   devolve  dition  of 
upon  males,  they  have  no  right  to  demand  the  privileges.  Privileges 
They  cannot  serve  in  the  army  or  the  militia  or  the  posse 
comitatus,  or  perform  jury  service,  or  serve  the  state  in 
many  other  capacities  without  violating    the   proprieties 
and  safeguards  of  female  virtue.     Nevertheless,  as   Sidg- 
wick  has  aptly    remarked,  the  military  argument  has  no 
force  in  states  where  military  service  is   mainly  voluntary 
and  where  men  who  are  not    trained  soldiers  are  rarely 
called  into  the  service.^ 

Finally,  the  argument  Is  advanced  that  the  majority  of  The  Ma- 
the  female  population  in  most  states  do  not  desire  the  women 
right  of  suffrage,  and  that  where  it  has  been  extended  to  ^^  ^o* 

desire  the 

women,  they  have  not  taken  advantage  of  the  privilege  suffrage 
in  sufftcient  numbers  to  justify  the  experiment.^     But  in 

'  Bluntschli,  "Politik,"  bk.  X,  ch.  2;  Laveleye,  "Le  Gouvernement  dans  la  De- 
mocratic," vol.  II,  pp.  62  ff.  Esmein,  likewise  a  strong  opponent  of  suffrage  for 
women,  says  there  has  been  a  natural  division  of  labor  and  of  functions  between  the 
sexes  from  the  beginning  of  time,  and  that  to  man  belong  the  duties  of  public  life 
and  to  woman  the  guardianship  and  care  of  domestic  life.  Education  and  hereditary 
influences  have,  he  declares,  developed  and  fixed  with  each  the  corresponding  apti- 
tudes. "True  progress,"  says  Esmein,  "consists  not  in  drawing  women  into  public 
life  or  into  the  professions  hitherto  reserved  to  men,  but  in  rendering  marriage 
more  easy  and  safe  and  in  delivering  them  from  the  servitude  of  manual  labor." 
"Droit  constitutionnel,"  p.  214.  A  powerful  argument  against  woman  suffrage  has 
recently  been  made  by  Professor  A.  V.  Dicey  in  a  little  book  entitled  "Letters  to 
a  Friend  on  Votes  for  Women."  Professor  Dicey,  like  Mill,  was  once  an  ardent 
advocate  of  female  suffrage,  but  in  recent  years  his  opinions  have  undergone  a 
change. 

^  "Elements  of  Politics,"  p.  385. 

'  Thus  in  Oregon,  in  1905,  where  a  referendum  was  taken  on  a  proposition  to  give 
the  franchise  to  women,  one  third  of  the  women  failed  to  show  sufficient  interest  in  the 
matter  to  vote  at  all.    Likewise  in  Massachusetts,  where  in  1895  a  similar  proposition 


510  THE   ELECTORATE 

reply  to  this  it  may  be  said  that  if  it  be  true  that  the  privi- 
lege is  not  desired  by  the  majority  of  women,  which  is  very 
doubtful,  that  is  no  reason  why  it  should  be  denied  to  the 
minority  who  do  desire  it  and  who  would  take  advantage 
of  it  if  it  were  given  them.  On  the  whole,  it  seems  to  us 
that  the  weight  of  the  argument  is  in  favor  of  the  enfran- 
chisement of  women  —  certainly  of  those  who  are  un- 
married and  who  consequently  have  no  one  to  act  for  them 
at  the  ballot  box  —  and,  as  has  been  shown  above,  the  tend- 
ency of  recent  practice  would  seem  to  justify  the  prophecy 
of  Mill  that  "before  the  lapse  of  another  generation  the 
accident  of  sex,  no  more  than  the  accident  of  skin,  will  be 
deemed  a  sufficient  justification  for  depriving  its  pos- 
sessor of  the  equal  protection  and  just  privileges  of  a 
citizen."  ^ 

was  submitted  to  the  people,  men  and  women  alike,  only  about  22,000  out  of  a 
total  of  575,000  women  voted  on  the  proposition.  There  were  57  towns  in  which 
not  a  single  woman  voted. 

*  "Representative  Government,"  p.  179. 


CHAPTER   XVI 

THE   EXECUTIVE   DEPARTMENT 

Suggested  Readings:  Aucoc,  "Droit  administratif,"  vol.  I,  Intro- 
duction; Bagehot,  "The  English  Constitution,"  ch.  3;  Berthelemy, 
"Role  du  Pouvoir  executif  dans  les  Republiques  modernes,"  pp. 
1-48;  also  his  "Traite  elementaire  de  Droit  administratif,"  bk.  I, 
ch.  i;  Bosc,  "Les  Pouvoirs  legislatifs  des  Presidents  des  fitats 
Unis";  Bradford,  "Lessons  of  Popular  Government,"  vol.  II,  chs. 
30-32;  Bryce,  'American  Commonwealth,"  chs.  4-8;  Burgess, 
"Political  Science  and  Constitutional  Law,"  vol.  II,  bk.  Ill,  ch.  9; 
CooLEY,  "Principles  of  Constitutional  Law,"  ch.  5;  Dougherty, 
"The  American  Electoral  System,"  Introduction  and  ch.  i; 
Ducrocq,  "Cours  de  Droit  administratif,"  vol.  I,  Introduction; 
DuGUiT,^  "Droit  constitutionnel,"  sees.  38-40,  136-146;  see  also 
his  "L'Etat,  les  Gouvernants  et  les  Agents,"  ch.  3;  Esmein,  "Droit 
constitutionnel,"  pt.  II,  chs.  2-4;  Fairlie,  "National  Administra- 
tion of  the  United  States,"  chs.  1-2;  Finley  and  Sanderson,  "The 
American  Executive  and  Executive  Methods,"  chs.  3-5;  "The  Fed- 
eraUst,"  Nos.  67-75;  Goodnow,  "Principles  of  Administrative  Law," 
bk.  II;  Kent,  "  Commentaries  on  American  Law,"  vol.  I,  lect.  XIII; 
Pradier-Fodere,  "Precis  de  Droit  administratif,"  pt.  I,  ch.  i;  Sidg- 
wiCK,  "Elements  of  Politics,"  chs.  21-22;  Story,  "Commen- 
taries," sees.  1410-1489;  Walther,  "Das  Staatshaupt  in  den 
Republiken";  Woolsey,  "    olitical  Science,"  vol.  II,  ch.  9. 

I.    PRINCIPLE  OF  organization;    PLURAL  VERSUS  SINGLE 

EXECUTIVES 

In  a  broad  sense  we  mean  by  the  executive  the  aggre-  Meaning 
gate  or  totality  of  all  those  governmental  agencies  which  are  j^l^ 
concerned  with  the  execution  of  the  will  of  the  state.     In  Executive 
this  sense  the  term  embraces  not  only  the  chief  magistrate, 
but  also  his  principal  advisers  and  ministers,  as  well  as  the 
whole  body  of  subordinate  officials  through  whom  the  laws 
are    administered.      As    thus    understood,   the    executive 
embraces  the  whole  governmental  organization,  with  the 

517 


5i8 


THE   EXECUTIVE   DEPARTMENT 


Distinc- 
tion be- 
tween the 
Actual  and 
the  Titular 
Executive 


Principles 
of  Organi- 
zation 


exception  of  the  legislative  and  judicial  organs.  In  this 
wider  signification  cabinet  heads,  chiefs  of  bureaus,  diplo- 
matic agents,  tax  collectors,  inspectors,  commissioners,  post- 
masters and  policemen,  and  even  army  and  navy  officers, 
are  a  part  of  the  executive  and  collectively  constitute 
the  executive  department.  In  a  still  wider  sense  it  in- 
cludes even  the  judges  of  the  courts,  since  they  are  con- 
cerned with  the  interpretation  and  application  of  the  law, 
—  functions  which  in  reality  have  to  do  with  the  general 
act  of  execution.  In  the  narrowest  sense  the  term  is  ap- 
plied to  that  supreme  authority,  whether  an  individual  or 
body,  which  is  intrusted  with  the  appointment,  supervision, 
and  control  of  the  various  subordinate  agencies  through 
which  the  state  will  is  carried  out. 

In  considering  the  nature  of  the  executive  we  must 
further  distinguish  between  the  real  or  actual  executive 
on  the  one  hand,  and  the  nominal  or  titular  executive  in 
whose  name  the  government  is  administered,  but  who  in 
fact  has  little  to  do  with  the  actual  work  of  administration. 
Thus  in  countries  like  Great  Britain,  having  the  fully  de- 
veloped cabinet  system  of  government,  the  real  executive 
is  the  ministry,  the  crown  being  the  executive  only  in  a 
nominal  sense. 

On  account  of  its  peculiar  nature  the  executive  power 
must  be  organized  upon  principles  fundamentally  different 
from  those  upon  which  the  legislative  power  is  organized. 
Necessarily,  the  legislative  authority  must  be  a  more  or 
less  numerous  body,  that  is,  it  must  be  an  assembly  com- 
posed of  representatives  elected  at  frequent  intervals  from 
the  body  of  the  people.  Its  peculiar  function  is  to  delib- 
erate, consult  upon  the  general  needs  of  society  and  lay 
down  rules  of  conduct  for  the  guidance  of  private  indi- 
viduals and  public  officials.*  For  the  wise  discharge  of 
such  functions  a  body  of  persons  is  manifestly  better  fitted 
than  a  single  individual,  for  it  is  an  old  and  true  maxim 

*  Compare  Sidgwick,  "  Elements  of  Politics,"  p.  413. 


PLURAL   VERSUS   SINGLE   EXECUTIVES  519 

that  "in  a  multitude  of  councilors  there  is  wisdom."  The 
function  of  the  executive,  however,  is  not  primarily  to 
deliberate,  nor  to  formulate  and  express  the  will  of  the 
state,  but  to  execute,  enforce,  and  carry  out  the  state  will 
as  expressed  by  the  legislature.  The  prime  requisites  for 
efficiency  in  the  discharge  of  such  functions  are,  therefore, 
promptness  of  decision,  singleness  of  purpose,  energy  of  ac- 
tion, and  sometimes  secrecy  of  procedure.  It  may  be  stated 
in  general  terms,  says  Judge  Story,  that  that  organiza- 
tion is  best  which  will  at  once  secure  energy  in  the  executive 
and  safety  to  the  people.^  Obviously,  therefore,  a  single 
person  or  a  very  small  body  of  persons  is  better  fitted  for 
the  discharge  of  such  duties  than  a  numerous  assembly 
composed  of  many  minds  and  entertaining  a  variety  of 
views.  "The  advantages  of  a  single  chief,"  says  Woolsey,  unity  of 
"are  obvious;  he  is  able  to  bring  unity  and  efficiency  into  organ»- 
the  government,  and  being  alone,  he  or  his  ministry  is  Essential 
responsible;  whereas  two  presidents  would  be  apt  to  check- 
mate one  another,  if  they  were  of  different  parties,  and  would 
be  jealous  and  rivals  if  they  were  of  the  same  party."  ^  To 
organize  the  executive  power  by  dividing  it  among  a 
number  of  coordinate  and  equal  authorities  would  neces- 
sarily lead  to  its  enfeeblement,  if  not  its  utter  dissipation, 
especially  in  times  of  crises  when  promptness  of  decision 
and  energy  of  action  may  be  essential  to  the  preservation 
of  the  life  of  the  state.^  In  military  administration  the 
plural  form  of  executive  Is  wholly  out  of  place  and  full 
of  peril.  The  saying  attributed  to  Napoleon,  that  "one  bad 
general  is  better  than  two  good  ones,"  represents  an  exag- 
gerated, though  not  wholly  erroneous,  estimate  of  the  weak- 
ness of  a  dual  executive  in  military  matters.  An  executive 
organized  on  the  colleglal   principle  Is  Incompatible  with 

*  "Commentaries,"  vol.  TI,  sec.  1417. 

*  "Political  Science,"  vol.  II,  p.  270;  cf.  also  Kent,  "Commentaries,"  vol.  I,  lect. 
XIII,  sec.  I. 

'  Compare  Sidgwick,  "Elements  of  Politics,"  p.  410. 


520  THE   EXECUTIVE   DEPARTMENT 

force,  energy,  unity  of  purpose,  and  independence.     Unity 
in  organization  is  essential  to  strength,  while  division  is 
a  source  of  weakness.     The  executive,  first  of  all,  must 
possess  strength  and  power,  because  it  is  charged  with  the 
great  task  of  enforcing  the  will  of  the  state. 
Examples        History  furnishes  some  examples  of  the  plural  form  of 
tfvfs"*^"     executive,  but  they  were  all  short-lived.     In  ancient  Athens 
organized    the  executive  power  was  split  up  into  fragments  and  divided 
legiaiPrin-  between  generals,  archons,  etc.,  each  being  independent  of 
cipie  ^Y\e  other.     The  Roman  constitution  for  a  long  time  pro- 

vided for  two  consuls,  each  of  whom  was  invested,  not  with 
a  part  of  the  executive  power,  but  the  whole  of  it,  and  each 
could  in  effect  veto  the  action  of  his  colleagues.  Sparta, 
in  early  times,  had  two  kings,  and  the  principle  of  "plu- 
rality" was  extended  to  the  organization  of  subordinate 
offices  such  as  praetors  and  consuls.^  France  after  the 
Revolution  experimented  with  the  plural  form  of  executive 
under  several  different  constitutions.  That  of  1795  vested 
the  executive  power  in  a  Directory  of  five  persons,  but  the 
results  were  anything  but  satisfactory.^  Nevertheless,  the 
principle  of  plurality  was  retained  in  the  constitution  of 
1799,^  which,  in  theory,  vested  the  supreme  executive 
power  in  three  consuls  appointed  for  ten  years,  but  in 
reality  the  second  and  third  consuls  were  little  more  than 

*  Woolsey,  "Political  Science,"  vol.  II,  p.  269.  "The  experience  of  other  na- 
tions," said  Hamilton  in  "The  Federalist"  (No.  69),  "will  afford  little  instruction  on 
this  head.  As  far,  however,  as  it  teaches  anything  it  teaches  us  not  to  be  enamored 
of  plurality  in  the  executive.  We  have  seen  that  the  Achaeans  on  an  experiment 
of  two  praetors  were  induced  to  abolish  one.  The  Roman  history  records  many 
instances  of  mischief  to  the  republic  from  the  dissensions  between  the  consuls  and 
between  the  military  tribunes  who  were  at  times  substituted  for  the  consuls." 

'  Esmein,  "Droit  constitutionnel,"  third  ed.,  p.  473.  The  Directory,  observes 
St.  Girons,  "was  a  sad  government;  it  vacillated  between  feebleness  and  violence. 
The  enfeeblement  of  the  executive  power  led  to  the  establishment  of  a  turbulent 
and  irresponsible  assembly."  Such  an  organization  of  the  executive,  he  adds,  is 
"the  best  school  to  inspire  the  people  with  love  for  a  dictatorship."  "La  Separation 
des  Pouvoirs,"  p.  263. 

'  Constitution,  title  IV,  art.  9. 


PLURAL  VERSUS   SINGLE    EXECUTIVES  521 

figureheads.      The  institution   was   continued   under  the 
senatus  consultum  of  1802.* 

At  the  present  time,  the  executive  in  every  state,  with  The  Swiss 
one  exception,  is    organized    on    the   single-headed    prin-  ^^/^^'y* 
ciple.     The  exception  is  found  in  the  constitution  of  the  Modem 
Swiss  repubhc,  which  vests  the  executive  power  in  a  coun-  ofaPiurai 
cil  of  seven  persons.     One  of  the  seven  bears  the  title  and  Executive 
dignity  of  President  of  the  Confederation  and  performs  the 
ceremonial  duties  of  the  executive  office,  but,  in  reality, 
he  is  merely  chairman  of  the  council  and  shares  the  execu- 
tive power  equally  with  his  colleagues.     He  is  in  no  sense 
the  supreme  head  of  the  administration  and  carries  no 
greater    responsibility    than    his    fellow    councilors.     The 
practical  working  of  the  institution  in  Switzerland  has  been 
attended  with  less  difficulty  than  the  plural  form  elsewhere, 
mainly  on  account  of  certain  habits  and  traditions  of  the 
Swiss  people,  and  because  the  ground  had  already  been 
prepared  through  local  experience.     For  a  long  time  the 
collegial  form  of  executive  had  existed  in  the  separate  can- 
tons, and  hence  when  it  was   introduced  into   the  consti- 
tution of  the  confederation,  in  1848,  the  institution  had 
passed  the  experimental  stage.^ 

The  testimony  of  political  writers  and  statesmen  has  been  views  of 
practically  unanimous  in  favor  of  the  principle  of  unity  in  ^*™*^*°'^ 
the  construction  of  the  executive  office.  No  one  has  more 
powerfully  defended  it  than  Alexander  Hamilton."  "En- 
ergy in  the  executive,"  he  said,  "is  a  leading  characteristic 
in  the  definition  of  good  government.  It  is  essential  to  the 
protection  of  the  community  against  foreign  attacks.  It  is 
not  less  essential  to  the  steady  administration  of  the  laws; 

*  Esmein  says  that  some  Frenchmen  desired  to  establish  the  collegial  form  of 
executive  in  1871,  contending  that  it  offered  the  best  guarantees  against  arbitrary 
power,  since  it  would  prove  a  more  efficient  check  on  the  acts  of  a  single  ambitious 
and  unscrupulous  executive.     "Droit  constitutionnel,"  p.  472. 

^  Riittimann/'Das  Nordamerikanische  Bundestaatsrecht  verglichen  mit  den 
politischen  Einrichtungen  der  Schweiz,"  vol.  I,  sec.  201;  Esmein,  op.  cil.,  p.  475; 
Lowell,  "Government  and  Parties  in  Europe,"  vol.  II,  pp.  196-208. 


522  THE   EXECUTIVE   DEPARTMENT 

to  the  protection  of  property  against  those  irregular  and 
high-handed  combinations  which  Sometimes  interrupt  the 
ordinary  course  of  justice;  to  the  security  of  liberty  against 
the  enterprises  and  assaults  of  ambition,  of  faction,  and 
of  anarchy.  Every  man  the  least  familiar  with  Roman 
history  knows  how  often  Rome  was  obliged  to  take 
refuge  in  the  absolute  power  of  a  single  man,  under  the 
formidable  title  of  dictator,  as  well  as  against  the  intrigues 
of  ambitious  individuals  who  aspired  to  the  tyranny,  and 
the  seditions  of  whole  classes  of  the  community  whose 
conduct  threatened  the  existence  of  all  government,  as 
against  the  invasion  of  external  enemies  who  menaced  the 
conquest  and  destruction  of  Rome."  ^  A  feeble  executive, 
he  justly  observed,  implies  a  feeble  government  and  is  but 
another  name  for  bad  government. 

"The  most  distinguished  statesmen,"  says  Judge  Story, 
"have  uniformly  maintained  the  doctrine  that  there  ought 
to  be  a  single  executive  and  a  numerous  legislature.  They 
have  considered  energy  as  the  most  necessary  qualification 
of  the  executive  power,  and  this  is  best  attained  by  reposing 
it  in  a  single  hand.^  Plurality  in  the  organization  of  the 
executive  also  tends  to  conceal  faults  and  destroy  responsi- 
bility.^ Responsibility  under  such  an  arrangement,  ob- 
serves Mill,  is  a  mere  name.  What  the  "board"  does,  he 
goes  on  to  say,  is  the  act  of  nobody,  and  nobody  can  be 
made  to  answer  for  it.  Where  a  number  are  responsible, 
the  responsibility  is  easily  shifted  from  one  shoulder  to 
another,  and  hence  both  the  incentive   in   the   executive 

»  "The  Federalist,"  No.  69. 

*  "Commentaries,"  sees.  1419,  1424.  Cf.  also  Montesquieu,  "Esprit  des  Lois," 
bk.  XI,  ch.  6.  Also  John  Stuart  Mill,  "Representative  Government,"  ch.  14. 
"Where  the  object  to  be  attained,"  says  Mill,  "is  single,  the  authority  commis- 
sioned to  attend  to  it  should  be  single.  The  entire  aggregate  of  means  provided 
for  one  end  should  be  under  the  same  control  and  responsibility.  If  they  are 
divided  among  independent  authorities,  the  means,  with  each  of  those  author- 
ities, become  ends,  and  it  is  the  business  of  nobody  except  the  head  of  the  govern- 
ment ...  to  take  care  of  the  real  end." 

'  De  Lolme,  "Constitution  of  England,"  bk.  II,  ch.  2. 


PLURAL   VERSUS   SINGLE   EXECUTIVES  523 

and  the  advantage  of  the  restraint  of  public  opinion  are 
lost. 

For  convenience  of  administration  a  large  part  of  the  Deiega- 
executive   power   in  a  complex,   modern  state,   however,   cistribu- 
must  necessarily  be  delegated  and  distributed  among  sub-  tion  of 

Cx6cutiv6 

ordinate  authorities.     No  single  person  is  physically  capa-  Power 
ble  of  exercising  the  whole  of  that  power.     But  that  does 
not  necessarily  involve  a  division  of  the  power  in  the  final 
analysis;   the  supreme  responsibility  is  still  in  the  hands  of 
a  single  magistrate  and  hence  is  a  unit. 

Sometimes,  however,  the  unity  of  the  executive  power  is  Executive 
in  effect  destroyed  or  impaired  by  vesting  it  ostensibly  in  °"°"^^ 
one  person,  but  really  dividing  it  between  him  and  a  council 
to  whose  advice  and  control  he  is  made  subject.  Thus 
in  the  early  constitutions  of  the  American  states  the  execu- 
tive in  nearly  every  instance  was  subjected  to  the  control, 
in  a  large  degree,  of  such  a  council ;  and  indeed  in  two 
states,  namely,  Pennsylvania  and  Vermont,  the  executive 
power  was  virtually  vested  in  a  board. ^ 

A  strong  effort  was  made  in  the  convention  which  framed  in  the 
the  constitution  of  the  United  States  to  associate  an  execu-  states 

*  See  W.  C.  Moray,  "Revolutionary  State  Constitutions,"  in  the  "Annals  of  the 
American  Academy  of  Political  and  Social  Science,"  vol.  IV,  p.  27;  and  W.  C. 
Webster,  "State  Constitutions  of  the  Revolution,"  in  the  same  periodical,  vol.  IX, 
p.  80.  " The  idea  of  a  council  to  the  executive,"  says  Hamilton,  in  "The  Federalist," 
No.  70,  "  which  has  so  generally  obtained  in  state  constitutions  has  been  derived 
from  that  maxim  of  republican  jealousy  which  considers  power  as  safer  in  the  hands 
of  a  number  of  men  than  of  a  single  man.  If  the  maxim  should  be  admitted  to  be 
applicable  to  the  case,  I  should  contend  that  the  advantage  on  that  side  would  not 
counterbalance  the  numerous  disadvantages  on  the  opposite  side.  But  I  clearly 
concur  in  opinion,  in  this  particular,  with  a  writer  whom  the  celebrated  Junius  pro- 
nounces to  be 'deep,  solid,  and  ingenious,'  that  'the  executive  power  is  more  easily 
confined  when  it  is  one ' ;  that  it  is  far  more  safe  should  there  be  a  single  object 
for  the  jealousy  and  watchfulness  of  the  people.  .  .  .  The  Decemvirs  of  Rome, 
whose  name  denotes  their  number,  were  more  to  be  dreaded  in  their  usurpation 
than  any  one  of  them  would  have  been.  ...  A  council  to  a  magistrate  who 
is  himself  responsible  for  what  he  does  are  generally  nothing  better  than  a  clog 
upon  his  good  intentions ;  are  often  the  instruments  and  the  accomplices  of  his 
bad,  and  are  almost  always  a  cloak  to  his  faults." 


524 


THE   EXECUTIVE   DEPARTMENT 


In 
Germany 


In 
England 


tive  council  with  the  President,  but  the  project  was  finally 
defeated  by  a  vote  of  eight  states  to  three.  In  the  German 
Empire  the  Federal  Council  (Bundesrath)  shares  with  the 
chief  executive  an  important  part  of  the  executive  power, 
so  much  so,  indeed,  that  some  of  the  German  writers  treat 
the  Federal  Council  as  the  real  executive  and  the  emperor  as 
merely  its  agent/  It  participates  in  the  appointment  of 
certain  imperial  officers,  sanctions  important  ordinances 
issued  by  the  emperor,  frames  the  arrangements  necessary 
for  the  administration  of  the  laws  when  no  provision  has 
been  made  by  imperial  law,  exercises  a  sort  of  supervision 
over  the  execution  of  the  laws;  and  its  consent  is  necessary 
to  declarations  of  war  and  to  the  ratification  of  treaties. 
In  England,  likewise,  various  acts  of  the  executive,  particu- 
larly those  known  as  orders  in  council,  require  for  their 
validity  the  approval  of  the  Privy  Council.^  The  President 
In  France  of  the  French  Republic  is  required  to  consult  the  Council 
of  State  in  many  cases,  especially  in  regard  to  issuing  ordi- 
nances; but  the  French  idea  is  so  averse  to  the  diffusion 
of  responsibility  that  the  executive  is  not  compelled  to  act 
upon  the  advice  which  the  council  may  give  him.  There 
is  a  saying  of  the  French  that  "to  act  is  the  function  of 
one;  to  deliberate,  that  of  several;"  and  while  the  value 
of  advice  is  fully  recognized,  they  are  unwilling  to  sacrifice 
the  advantages  of  responsibility  in  order  to  establish  a 
control  over  the  executive.^ 

"The  President  of  the  United  States,"  says  De  Tocque- 
ville,  "was  made  the  sole  representative  of  the  executive 
powers  of  the  Union,  and  care  was  taken  not  to  render  his 
decisions  subordinate  to  the  vote  of  a  council  —  a  dangerous 
measure  which  tends  at  the  same  time  to  clog  the  action  of 
the  government  and  to  diminish  its  responsibility.     The 


*  Cf.  Zorn,  "Staatsrecht,"  vol.  I,  p.  156;  also  Goodnow,  "  Comparative  Admin- 
istrative Law,"  vol.  I,  p.  116. 

'  Todd,  "Parliamentary  Government,"  vol.  II,  p.  80. 

'  Compare  Goodnow,  "Comparative  Administrative  Law,"  vol.  I,  pp.  86,  112. 


PLURAL   VERSUS   SINGLE   EXECUTIVES  525 

Senate  has  the  right  of  annulling  certain  acts  of  the  Presi- 
dent; but  it  cannot  compel  him  to  take  any  steps,  nor  does 
it  participate  in  the  exercise  of  the  executive  power.  .  .  . 
The  Americans  have  not  been  able  to  counteract  the  ten- 
dency which  legislative  assemblies  have  to  get  possession 
of  the  government,  but  they  have  rendered  this  propensity 
less  irresistible."  ^ 

No  possible  objection,  it  would  seem,  can  be  urged  against  vaiue 
the  scheme  of  associating  a  merely  advisory  council  with  °^.^" 
the  executive.  Such  an  arrangement  ought  to  bring  Council 
strength  and  wisdom  to  the  executive  department.  Mill 
has  justly  observed  that  a  man  seldom  judges  right  when 
he  makes  habitual  use  of  no  knowledge  but  his  own  or  that 
of  a  single  adviser.  The  work  of  administration  is  often 
complex  and  difficult  and  requires  for  its  efficient  perform- 
ance highly  technical  and  special  knowledge,  not  only  on 
the  part  of  those  who  actually  perform  the  service,  but 
often  on  the  part  of  the  chief  magistrate  who  directs  the 
administration.  Such  knowledge  he  rarely  possesses, 
hence  the  advantage  of  an  advisory  council  composed  in 
part  of  men  who  do  possess  It  is  clearly  evident.  But  the 
ultimate  decision  in  most  cases  ought  to  be  with  the 
executive,  and  the  responsibility  ought  to  rest  upon  him. 
It  is  easy,  as  Mill  has  remarked,  to  give  the  effective 
power  and  the  full  responsibility  to  one,  providing  him 
when  necessary  with  advisers,  each  of  whom  is  responsible 
only  for  the  opinion  he  gives. ^ 

The  principal  argument  which  has  been  advanced  in 
support  of  the  plural  form  of  executive  is  that  it  fur- 
nishes greater  guarantees  against  the  dangers  of  executive 
abuse  and  oppression  and  renders  more  difficult  executive 
encroachments  upon  the  sphere  of  the  legislature  and  upon 
the  liberties  of  the  people  in  general.^     It  is  mainly  for  this 

'  "Democracy  in  America,"  vol.  I,  pp.  125,  126. 
*"  Representative  Government,"  p.  244. 
'Compare  Esmein,  "Droit  constitutionnel,"  p.  472. 


526  THE   EXECUTIVE   DEPARTMENT 

reason  that  the  executive  is  often  subjected  to  the  control 
of  a  council  in  those  branches  of  administration  which 
afford  the  largest  temptations  and  opportunities  for  abuse 
of  power. 
Argument  An  executivc  constituted  on  such  a  principle  manifestly 
o°  Jplurai  could  uot  plan  and  execute  a  coup  d  'etat,  nor  invade  the 
Executive  spheres  properly  belonging  to  the  other  departments,  with 
the  same  ease  and  readiness  with  which  a  single  ambitious 
individual  could,  unrestrained  by  a  council  or  opposed  by 
colleagues  who  share  with  him  responsibility.  It  is  some- 
times claimed  that  the  vesting  of  the  supreme  executive 
power  in  the  hands  of  a  single  person  is  a  relic  of  absolut- 
ism and  hence  is  inconsistent  with  the  genius  of  a  repub- 
lican government.  It  is  difficult,  says  Story,  to  find  a 
sufficient  ground  on  which  to  rest  this  notion;  and  those 
which  are  usually  stated  "belong  principally  to  that  class 
of  minds  which  readily  indulge  in  the  belief  of  the  general 
perfection,  as  well  as  perfectibility  of  human  nature,  and 
deem  the  least  possible  quantity  of  power  with  which 
government  can  subsist  to  be  the  best."  ^  Finally,  it  is 
contended  by  some  that  an  executive  organized  on  the 
plural  principle,  while  perhaps  lacking  the  advantages 
of  unity  and  energy,  yet  is  likely  to  possess  a  higher  de- 
gree of  ability  and  wisdom  than  can  be  found  in  any 
single  person.  The  executive  power,  it  is  pointed  out, 
involves  much  more  than  the  mere  ministerial  function 
of  executing  the  commands  of  the  legislature;  it  often 
involves  the  formulation  of  constructive  policies,  as  well 
as  important  powers  of  direction  requiring  the  exercise  of 
wide  discretion  and  judgment,  duties  that  can  be  more 

*  "  Commentaries,"  vol.  II,  sec.  1417.  Milton,  in  his  "  Ready  and  Easy  Way  to 
establish  a  Free  Commonwealth,"  held  this  opinion.  Both  Locke  and  Hume, 
mainly  for  the  same  reason,  advocated  the  vesting  of  the  executive  povi^er  in  small 
assemblies.  (Locke,  "  Fundamental  Constitution  for  the  Carolinas " ;  Hume, 
"Essays"  vol.  I,  p.  526.)  For  criticisms  of  this  view,  see  Kent,  "Commenta- 
ries," 12th  ed.,  vol.  I,  p.  283;  and  Adams,  "Defense  of  the  American  Constitu- 
tions," No.  54. 


MODE    OF   CHOICE   OF   THE   EXECUTIVE  527 

wisely  discharged  by  a  body  of  persons  than  by  a  single 
individual. 

But  the  merits  are  more  than  offset  by  the  disadvantages; 
and  when  all  is  said  that  can  be  said  in  favor  of  the  plural 
executive,  the  fact  remains  that  experience  has  demon- 
strated its  inherent  weakness  and  has  justified  the  single 
form. 

II.  MODE  OF  CHOICE  OF  THE  EXECUTIVE 

Four  different  methods  of  choosing  the  executive  have  Methods 
been  followed  in  practice:  first,  the  hereditary  principle; 
second,  direct  election  by  the  people;  third,  indirect  elec- 
tion by  a  body  of  intermediate  electors,  either  themselves 
popularly  elected  or  chosen  by  some  branch  of  the  govern- 
ment;   and,  fourth,  election  by  the  legislature. 

In  all  the  monarchical  states  of  Europe  to-day  the  exec-  The 
utive  (that  is,  the  nominal  or  titular  executive)  is  heredi-  prhfdpie^ 
tary  in  a  particular  family  or  dynasty.  Before  the  rise  of 
popular  government  this  principle  of  selection  was  prac- 
tically universal  and  it  still  survives  in  a  large  part  of  the 
world  to-day,  but  is  tolerated  perhaps  rather  than  pre- 
ferred, being  more  the  result  of  historical  conditions  than 
of  deliberate  creation.  It  is  doubtful  whether  the  princi- 
ple is  destined  to  be  extended  in  the  future  either  through 
the  reorganization  of  existing  states  or  the  establishment 
of  new  ones.^  Hereditary  tenure  of  public  office  no  longer 
seems  to  be  in  keeping  with  the  spirit  of  popular  govern- 
ment, and  as  a  practical  rational  system  of  appointment 
it  has  few  merits,  as  we  have  explained  in  the  chapter  on 
forms  of  government.^ 

■  Nevertheless,  Norway  in  1906  chose  it  in  preference  to  an  elective  republic. 

*  "Looking  at  the  subject  from  a  purely  scientific  standpoint,"  says  Burgess,  "it 
seems  to  me  that  a  democratic  state  may,  without  violence  to  its  own  principle,  con- 
struct for  itself  a  government  in  which  the  executive  power  will  hold  by  hereditary 
right."  Burgess  admits,  however,  that  it  "is  not  the  most  natural  tenure  for  the 
executive  of  a  democratic  state."  "  It  implies  the  existence  of  unusual  conditions  and 
the  observance  of  difficult  requirements,  such  as  the  existence  of  a  royal  house  whose 
foundation  is  far  back  of  the  revolution  which  changed  the  state  from  its  monarchical 


528  THE    EXECUTIVE   DEPARTMENT 

Merits  But  it  must  be  borne  in  mind  that  hereditary  executives 

Hereditary  ^^^  "^^'  ^^  ^^^  been  said,  Ordinarily  the  actual  chiefs  of  the 
Principle  administration,  but  only  the  titular  heads.  Their  office  is 
mainly  to  lend  dignity,  majesty,  and  ornament  to  the  gov- 
ernment, somewhat  as  a  cupola  is  intended  to  add  grace 
and  proportion  to  a  building.  The  institution  tends  to 
introduce  into  the  administration  of  the  government  ele- 
ments of  stability,  permanence,  continuity,  and  experience, 
and  in  the  relations  of  the  state  with  foreign  powers  it 
tends  to  add  a  certain  prestige  which  is  not  without  weight 
in  diplomatic  intercourse.  The  value  of  a  hereditary  execu- 
tive in  the  government  of  the  state  has  been  well  set  forth 
by  the  English  writers  Bagehot  and  Todd.^  Bagehot,  in 
his  defense  of  monarchy,  declares  that  the  masses  have  little 
respect  or  reverence  for  an  executive  which  they  assist 
every  half-dozen  years  to  create.  A  hereditary  monarch, 
he  argues,  is  a  powerful  means  of  attaching  the  masses  to 
the  government  and  of  securing  their  loyalty  and  obedi- 
ence. Among  the  advantages  of  the  hereditary  principle, 
says  Burgess,  that  are  manifest  even  to  one  surrounded 
by  the  prejudices  of  the  New  World  are:  first  of  all,  a  re- 
spect for  government  and  a  readiness  to  obey  the  law 
which  can  in  no  other  way  be  attained  until  the  political 
society  shall  have  reached  a  degree  of  perfection  far  beyond 
anything  which  at  present  exists  anywhere  in  the  world. ^ 

or  aristocratic  to  its  democratic  form,  and  that  the  reigning  house  has  accommodated 
itself  to  the  spirit  of  the  revolution,  and  has  retained  its  hold  on  the  people." 
"Political  Science  and  Constitutional  Law,"  vol.  II,  p.  308. 

*  Bagehot,  "The  English  Constitution,"  ch.  3;  Todd,  "Parliamentary  Govern- 
ment," vol.  I,  ch.  4. 

*  "Political  Science  and  Constitutional  Lavsf,"  vol.  II,  p.  309.  "The  great  ad- 
vantage of  hereditary  monarchies,"  said  De  Tocqueville,  "is  that  as  the  private 
interest  of  a  family  is  always  intimately  connected  with  the  interests  of  the  state, 
the  executive  government  is  never  suspended  for  a  single  instant ;  and  if  the  affairs  of 
a  monarchy  are  not  better  conducted  than  those  of  a  republic,  at  least  there  is  always 
some  one  to  conduct  them,  well  or  ill,  according  to  his  capacity.  In  elective 
states,  on  the  contrary,  the  wheels  of  government  cease  to  act,  as  it  were,  of  their  own 
accord  at  the  approach  of  an  election  and  even  for  some  time  previous  to  that 
event."     "Democracy  in  America,"  trans,  by  Reeves,  vol.  I,  p.  133. 


MODE    OF   CHOICE    OF   THE   EXECUTIVE  529 

But  when  all  is  said  that  can  be  said  in  favor  of  the  heredi- 
tary principle  as  a  mode  of  selecting  the  executive,  the  weight 
of  evidence  and  the  testimony  of  experience  are  against  it. 
It  can  only  be  looked  upon  as  a  survival  of  a  past  age,  and 
its  ultimate  disappearance  will  doubtless  follow  in  the 
course  of  the  political  evolution  of  the  future. 

The  choice  of  the  executive  by  the  direct  vote  of  the  Direct 
people  represents  the  opposite  principle  to  that  of    the  Ej^^on 
hereditary  method.     It  is  confined   mainly  to   republics, 
though  there  have  been,  as  we  have  shown  in  a  previous 
chapter,  occasional  examples  of  elective  monarchies.^     At 
the  present  time  the  national  executives  of  a  number  of 
the  South  American  republics,  notably  those  of  Bolivia, 
Brazil,  and  Peru,  are  chosen  by  direct  popular  vote;  and  this 
is  true,  of  course,  of  the  local  state  executives  in  the  United 
States.     In  form,  the  method  of  electing  the  President  of 
the  United  States  is  indirect,  though,  owing  to  a  metamor- 
phosis of  the  electoral  system,  the  method  has  to  a  large 
degree  come  to  be  direct.     The  advantages  of  the  method  its  Ad- 
of  popular  election  are,  that  it  is  more  distinctly  in  accord  ^*°**8es 
with  modern  notions  of  popular  government,   stimulates 
interest  in  public  affairs,  affords  a  means  of  political  educa- 
tion for  the  masses,  and  secures  the  choice  of  a  chief  mag- 
istrate in  whose  ability   and  integrity  the    people  have 
confidence  and  to  whom  he  is  more  or  less  directly  respon- 
sible for  his  official  conduct. 

The  principal  objections  to  direct  popular  election  are:  Objections 
the  incompetency  of  the  masses  in  a  country  of  vast  area  choice"  ^' 
to  judge  intelligently  of  the  qualifications  of  a  candidate 
for  so  important  an  office,  their  liability  to  be  influenced  by 
demagogues,  and  the  general  demoralization  and  the  politi- 
cal excitement  which  are  almost  inseparable  from  a  contest 
of  such  magnitude.  "The  election  of  a  supreme  magistrate 
for  a  whole  nation,"  wrote  Chancellor  Kent,  "affects  so 
many  interests  and  addresses  itself  so  strongly  to  popular 

1  Chapter  V. 
POL.  SCI. 34 


530 


THE    EXECUTIVE   DEPARTMENT 


passions  and  holds  out  such  powerful  temptations  to  ambi- 
tion that  it  necessarily  becomes  a  strong  trial  to  public 
virtue  and  even  hazardous  to  the  public  tranquillity."  "It 
has  been  found  impossible,"  continues  the  same  distin- 
guished author,  "to  guard  the  elections  from  the  mischiefs 
of  foreign  intrigue  and  domestic  turbulence,  from  violence 
or  corruption;  and  mankind  have  generally  taken  refuge 
from  the  evils  of  popular  elections  in  hereditary  executives 
as  being  the  least  evil  of  the  two.  The  most  recent  and 
remarkable  change  of  this  kind  occurred  in  France,  in  1804, 
when  the  legislative  body  changed  their  elective  into  an 
hereditary  monarchy  on  the  avowed  ground  that  the 
competition  of  popular  elections  led  to  corruption  and 
violence."  ^ 

Among  the  framers  of  the  constitution  of  the  United 
States  only  three  or  four  favored  direct  popular  election  of 
the  chief  magistrate.  Nearly  all  the  delegates  who  ex- 
pressed an  opinion  on  the  subject  were  full  of  profound  dis- 
trust of  such  a  method.  Roger  Sherman  declared  "that  the 
people  would  never  be  sufficiently  informed  of  the  character 
of  men  to  vote  intellectually  for  the  candidates  that  might 
be  presented";  Charles  C.  Pinckney  thought  "the  people 
would  be  incited  by  designing  demagogues";  Gerr^^ stig- 
matized the  proposition  as  "radically  vicious";  and  Mason 
went  so  far  as  to  say  that  "it  would  be  as  unnatural  to  refer 
the  choice  of  a  proper  person  for  President  to  the  people, 


^  "Commentaries,"  vol.  I,  pp.  274-275.  Speaking  of  the  mode  of  choosing  the 
President  of  the  United  States  which  at  the  time  he  wrote  had  become  direct  in  sub- 
stance, Kent  declared : "  If  ever  the  tranquillity  of  this  nation  is  to  be  disturbed  and  its 
liberties  endangered  by  a  struggle  for  power,  it  will  be  upon  this  very  subject  of  the 
choice  of  a  President.  This  is  the  question  that  is  eventually  to  test  the  goodness  and 
try  the  strength  of  the  constitution ;  and  if  we  shall  be  able,  for  half  a  century  here- 
after, to  continue  to  elect  the  chief  magistrate  of  the  Union  with  discretion,  moderation, 
and  integrity, we  shall  undoubtedly  stamp  the  highest  value  on  our  national  character 
and  recommend  our  republican  institutions,  if  not  to  the  invitation,  yet  certainly  to 
the  esteem  and  admiration  of  the  more  enlightened  part  of  mankind."  Compare 
also  an  article  by  the  author  entitled,  "Shall  the  Electoral  College  be  Abolished?" 
in  the  "  Independent"  for  January  27,  1910." 


MODE    OF   CHOICE    OF   THE   EXECUTIVE  531 

as  to  refer  a  trial  of  colors  to  a  blind  man;"  Hamilton 
feared  that  it  would  "convulse  the  community  with  ex- 
traordinary and  violent  movements  "and  lead  to  "heats  and 
ferments"  that  would  disturb  the  public  tranquillity/ 
Experience  has  shown,  however,  that  the  evils  which  the 
framers  of  the  constitution  predicted  were  greatly  exagger- 
ated, and,  happily,  their  worst  fears  have  not  been  realized. 
Nevertheless,  it  cannot  be  denied  that  some  of  these 
evils  have  not  been  entirely  absent.  The  long  period 
of  business  depression,  the  intense  strain  upon  the  public 
virtue,  the  heated  political  excitement  and  passion,  and  the 
general  demoralization  which  have  come  to  be  regular 
features  of  our  quadrennial  contests  over  the  choice  of  the 
chief  magistrate  in  the  United  States  have  abundantly  shown 
that  the  method  of  popular  election  is  not  in  all  respects 
ideal.  One  of  its  worst  features  is  what  Mill  called  "the 
mischief  of  intermitted  electioneering."  When  the  highest 
dignity  in  the  state,  he  declared,  is  to  be  conferred  by  popu- 
lar election  once  in  every  few  years,  the  whole  intervening 
time  is  spent  in  what  is  virtually  a  canvass.  President, 
ministers,  chiefs  of  parties,  and  their  followers  are  all 
electioneers.  The  whole  community  is  kept  intent  on  the 
mere  personality  of  politics,  and  every  public  question  is 
discussed  and  decided  with  less  reference  to  its  merits  than 
to  its  expected  bearing  on  the  presidential  election.  If  a 
system  had  been  devised.  Mill  goes  on  to  say,  to  make  party 
spirit  the  ruling  principle  of  action  in  all  public  affairs  and 
create  an  inducement  not  only  to  make  every  question  a 
party  question,  it  would  have  been  difficult  to  contrive  any 
means  better  adapted  to  the  purpose.^ 

"A  most  important  principle  of  good  government  in  a 
popular  constitution,"  to  quote  Mill  further,  "is  that  no 

^  Dougherty,  "The  Electoral  System  of  the  United  States,"  pp.  13-14;  also  "The 
Federalist,"  No.  67. 

^"Representative  Government,"  p.  250.  Cf.  also  Paley,  a  vigorous  opponent 
of  elective  executives,  "Moral  and  Political  Philosophy,"  p.  215. 


532 


THE   EXECUTIVE   DEPARTMENT 


Popular 
Election 
of  Subor- 
dinate 
Officials 


executive  functionaries  should  be  appointed  by  popular 
election;  neither  by  the  votes  of  the  people  themselves, 
nor  by  those  of  their  representatives."  The  business  of 
government,  he  points  out,  requires  skill,  special  informa- 
tion, and  technical  knowledge,  and  only  those  who  possess 
in  some  degree  those  qualifications  are  capable  of  choosing 
such  functionaries.  The  task  of  finding  and  choosing  them, 
he  asserts,  "is  very  laborious  and  requires  a  delicate  as  well 
as  a  highly  conscientious  discernment."  ^ 

So  far  as  the  selection  of  subordinate  executive  officials 
is  concerned,  we  believe  this  to  be  a  sound  proposition;  and 
one  of  the  chief  weaknesses  in  the  constitutions  of  the  local 
governments  in  the  United  States  to-day  arises  from  the 
wide  extension  of  the  elective  principle  to  the  appointment 
.of  officials  whose  duties  are  administrative  in  character, 
and  the  performance  of  which  requires  qualifications  which 
are  difficult  to  obtain  by  popular  election.  This  evil 
has  lately  come  to  be  a  source  of  general  complaint  in 
connection  with  state  and  municipal  government  where 
such  officials  as  railroad  and  insurance  commissioners, 
clerks  of  various  kinds,  law  officers,  and  even  engineers 
and  other  administrative  experts  are  often  chosen  by 
popular  election.  But  does  this  objection  necessarily 
apply  to  the  choice  of  the  chief  executive?  Mill,  who 
condemns  the  system  of  popular  election  for  all  sub- 
ordinate executive  functionaries,  has  himself  raised  the 
question  as  to  whether  the  chief  executive,  especially  in  a 
republic,  might  not  be  made  an  exception.  "There  is," 
he  admits,  "unquestionably  some  advantage*  in  a  country 
like  America  where  no  apprehension  need  be  entertained 
of  a  coup  d'etat,  in  making  the  chief  executive  constitu- 

*  "Representative  Government,"  pp.  247-248.  "Popular  election,"  observes 
Sidgwick,  "seems  generally  undesirable  as  a  mode  of  appointing  even  the  highest 
grade  of  subordinates;  partly  because  it  would  tend  to  give  the  elected  official  too 
independent  a  position,  partly  because  the  electors  would  not  ordinarily  be  good 
judges  of  the  special  qualifications  required  for  the  different  kinds  of  work.  "  "  Ele- 
ments of  Politics,"  p.  414. 


MODE    OF   CHOICE   OF   THE   EXECUTIVE  533 

tionally  independent  of  the  legislative  body  and  rendering 
the  two  great  branches  of  the  government,  while  equally 
popular  both  in  their  origin  and  in  their  responsibility,  an 
effective  check  on  one  another."^ 

The  method  of  indirect  election  is  the  system  employed  Advan- 
in  choosing  the  national  executives  of  the  United  States,  {^direct 
the  Argentine  Republic,  Chile,  Mexico,  and  a  few  other  Election 
Latin  American  republics,  although  the  elective  scheme  for 
choosing  the  President  of  the  United  States  has,  as  has  been 
said,  come  to  be  largely  direct  in  fact.     The  advantages 
claimed    for    the   indirect   system    are   that   it    affords   a 
means  of   avoiding  the    "heats,"    "tumults,"  and  "con- 
vulsions" of  direct  election,  and  at  the  same  time  leads 
to  a  more  intelligent  choice,  by  restricting  the  immediate 
selection   to  a  small  body  of  capable  and  well-informed 
representatives. 

"The  choice  of  several  to  form  an  intermediate  body  of  views  of 
electors,"  said  Hamilton,  in  defense  of  the  scheme  adopted  h*°^*1'°^ 
for  the  election  of  the  President  of  the  United  States,  and 
the  metamorphosis  of  which  was  not  then  foreseen,  "will 
be  much  less  apt  to  convulse  the  community  with  any  ex- 
traordinary and  violent  movements  than  the  choice  of  one 
who  was  himself  to  be  the  final  object  of  the  public 
wishes."  "It  was  desirable,"  he  continued,  "that  the 
immediate  election  should  be  made  by  men  most  capable  of 
analyzing  the  qualities  adapted  to  the  station.  A  small 
number  of  persons  selected  by  their  fellow-citizens  from  the 
general  mass  will  be  most  likely  to  possess  the  information 
and  discernment  requisite  to  so  complicated  an  investi- 
gation." ^ 

*  "Representative  Government,"  p.  249. 

^"The  Federalist,"  Ford's  ed.,  No.  68.  See  also  Story,  "Commentaries,"  sec. 
1457.  The  theory  of  the  electoral  college,  said  the  Senate  Committee  on  Elections 
in  1874,  was  "  that  a  body  of  men  should  be  chosen  for  the  express  purpose  of 
electing  a  President  and  Vice  President,  who  would  be  distinguished  by  their  emi- 
nent ability,  who  would  be  independent  of  popular  passion,  who  would  not  be  influ- 
enced by  tumult,  passion,  or  intrigue,  and  who  in  the  choice  of  the  President  would 


534  THE   EXECUTIVE   DEPARTMENT 

In  theory,  the  method  of  indirect  election  possesses  con- 
spicuous merits;  but  the  difficulty  Hes  in  the  fact  that  the 
electors  are  apt  to  be  chosen  under  party  pledges  to  vote 
for  a  particular  candidate,  and  thus  become  mere  agents 
for  registering  the  will  of  the  voters.  This  is  almost  inevi- 
table in  states  where  political  parties  are  highly  developed 
and  well  organized.  This  is  exactly  what  happened  in  the 
United  States  as  soon  as  party  lines  came  to  be  fully  drawn 
and  party  discipline  became  effective.  In  the  early  presi- 
dential elections  the  best  results  expected  of  the  electoral 
scheme  were  fully  realized,  the  electors  exercising  their  full 
judgment  in  choosing  the  President;  but  in  the  course  of 
time  they  became  mere  "party  puppets,"  with  no  discre- 
tion or  freedom  in  the  discharge  of  what  were  originally 
intended  to  be  solemn  and  important  functions.  Their 
duties  are  now  restricted  to  registering  the  choice  of  the 
party  voters  —  a  function  which  an  automaton  without 
intelligence  or  volition  could  as  fittingly  discharge.^  Thus 
what  was  intended  to  be  a  scheme  of  indirect  election,  in 
which  the  immediate  choice  of  the  chief  executive  was  to 
be  made  by  a  select  body  of  highly  capable  men,  has  in  the 
course  of  a  remarkable  development  become  in  reality  a 
system  of  direct  election  by  the  millions,  who  still  go 
through  the  form  of  voting  for  electors  whose  real  office  has 
long  since  disappeared.  Such  was  the  scheme  of  which 
Hamilton  did  not  hesitate  to  affirm  "that  if  the  manner  of 
it  be  not  perfect,  it  is  at  least  excellent,  "  and  which  was  the 
only  part  of  the  constitution  "that  escaped  without  severe 
censure  or  which  received  the  slightest  mark  of  approbation 
from  its  opponents."  ^ 

Finally,  the  chief  executive  may  be  chosen  by  the  legis- 
lative branch  of  the  government.     This  method  is  followed 

be  left  perfectly  free  to  exercisetheir  judgment  in  the  selection  of  the  proper  person." 
Quoted  by  Dougherty  in  his  "Electoral  System  of  the  United  States,"  p.  i6. 

*  Cf.  Dougherty,  "Electoral  System  of  the  United  States,"  p.  250;  and  Wilson, 
"Congressional  Government,"  p.  250. 

»"The  Federalist,"  No.  68. 


MODE    OF   CHOICE    OF   THE   EXECUTIVE  535 

in  Switzerland  and  in  France  (where  the  two  chambers 
organized  in  national  assembly  at  Versailles  constitute  the 
electoral  body  for  choosing  the  president  of  the  republic.)* 
This  was  a  system  employed  in  a  number  of  the  American 
states  for  a  time  after  the  Revolution,  and  is  still  the 
method  prescribed  in  several  of  them  in  case  no  candi- 
date receives  a  majority  of  the  popular  vote.  It  was  the 
method  first  decided  upon  by  the  Philadelphia  convention 
of  1787  for  the  election  of  the  President  of  the  United 
States,  but  was  finally  abandoned  upon  reconsideration 
for  the  scheme  described  above. 

The  main  objection  to  choice  by  the  legislature  is  that  Objections 
it  violates  the  principle  of  the  separation  of  governmental 
powers  by  imposing  upon  the  legislative  branch  a  duty 
alien  to  its  primary  function,  and  making  the  executive  to 
some  extent  an  agent  or  instrument  of  the  legislature.^  If 
the  executive  owed  his  ofifice  to  the  legislature,  "bargains," 
"intrigues,"  and  "cabals"  between  him  and  Congress  would 
not  be  wanting.  "  It  would  be  in  the  power  of  an  ambitious 
candidate,"  observed  Judge  Story,  "by  holding  out  the  re- 
wards of  oflfice,  or  other  sources  of  patronage  and  honor, 
silently  but  irresistibly  to  influence  a  majority  of  votes; 

'  The  French  vested  the  election  of  their  president  in  the  legislature  because  of 
their  fear  of  an  executive  elected  by  and  responsible  to  the  people.  They  had  had 
an  unfortunate  experience  with  an  executive  chosen  by  popular  suffrage,  and  they 
sought  to  guard  against  the  danger  in  the  future  by  making  the  president  elected 
by  and  responsible  to  the  legislature  organized  in  national  assembly.  But  they 
created  a  very  weak  executive  in  doing  this.  Burgess,  "Political  Science  and  Con- 
stitutional Law,"  vol.  IT,  p.  311. 

^  Compare  Rawle,  "On  the  Constitution,"  ch.  5,  p.  58.  Bryce  thus  states  the 
reasons  for  the  rejection  by  the  Philadelphia  convention  of  both  the  methods  of 
popular  election  and  appointment  by  the  legislature:  "To  have  left  the  choice  of 
the  chief  magistrate  to  a  direct  popular  vote  over  the  whole  country  would  have 
raised  a  dangerous  excitement  and  would  have  given  too  much  encouragement  to 
candidates  of  merely  popular  gifts.  To  have  intrusted  it  to  Congress  would  have  not 
only  subjected  the  executive  to  the  legislature  in  violation  of  the  principle  which 
requires  these  departments  to  be  kept  distinct,  but  have  tended  to  make  him  a  creature 
of  one  particular  faction  instead  of  the  choice  of  the  nation."  "American  Common- 
wealth," abridged  ed.,  ch.  4. 


536  THE   EXECUTIVE   DEPARTMENT 

and  thus  by  his  own  bold  and  unprincipled  conduct  to  secure 
choice,  to  the  exclusion  of  the  highest  and  purest  and  most 
enlightened  men  in  the  country."  ^  A  similar  opinion  was 
entertained  by  Chancellor  Kent,  who  remarked  that  "all 
elections  by  the  representative  body  are  peculiarly  liable  to 
produce  combinations  for  sinister  purposes."  ^  Both  reason 
and  experience  teach  that  election  by  the  legislature  not 
only  impairs  the  independence  of  the  executive  and  tends 
to  make  him  subservient  to  its  will,  but  creates  a  powerful 
temptation  to  an  ambitious  candidate  to  gain  the  support 
of  the  legislature  by  promises  of  official  reward  or  influence. 
Once  elected,  he  is  under  the  same  temptation  to  secure 
reelection.  To  be  fully  independent  of  legislative  control 
and  free  of  such  temptations,  the  excutive  must  owe  his 
office  to  a  different  source. 

Finally,  it  should  be  observed  that  the  imposition  of  so 
important  a  political  duty  upon  the  legislature  is  likely 
to  interfere  with  its  normal  function  of  lawmaking,  by  in- 
troducing into  its  procedure  a  distracting  element  which 
on  occasions  of  great  and  exciting  contests  must  neces- 
sarily consume  its  time,  lead  to  conflicts  and  deadlocks, 
and  give  a  party  coloring  to  the  consideration  of  many 
measures  which  are  in  reality  nonpartisan  in  character. 
If  proof  of  this  were  needed,  one  has  only  to  consider  the 
effect  upon  the  procedure  of  the  American  state  legisla- 
tures in  choosing  United  States  senators,  when  there  are 
close  and  exciting  contests.^  In  most  such  contests,  if  of 
long  duration,  the  legislative  output  is  generally  inferior 
in  quality. 

•  "Commentaries,"  sec.  1456. 

""Commentaries,"  lect.  XII,  p.  279.  Cf.  also  Woolsey  ("Political  Science," 
vol.  II,  p.  278),  who  remarks  "that  election  by  the  legislature  would  be  a  source  of 
great  corruption.  Men  who  had  votes  in  their  hands  would  bargain  for  places  for 
themselves  or  their  friends ;  a  system  of  intrigue  on  a  vast  scale  would  be  initiated 
which  would  have  disastrous  consequences  —  of  intrigue  not  only  between  mem- 
bers of  the  legislature  and  agents  of  candidates,  but  of  intrigue  of  politicians 
desirous  of  getting  a  place  in  the  body  which  was  to  choose  the  chief  magistrate." 

•  See  Haynes,  "Election  of  United  States  Senators,"  ch.  8. 


THE   TERM    OF   THE   EXECUTIVE  537 

The  chief  argument  in  favor  of  choice  by  the  legislature  Argument 
is  that  the  selection  is  likely  to  be  more  wisely  made  than  ^Ei^ctfon 
when  done  by  the  masses  of  voters,  or  by  any  body  of  inter-  by  the 
mediate  electors  especially  chosen  for  the  purpose.  Being  ture^* 
actively  concerned  with  public  affairs  and  acquainted  with 
the  leading  statesmen,  the  members  of  the  legislative  branch 
are  of  all  persons  most  qualified  to  choose  a  fit  man  for 
so  high  a  station.  John  Stuart  Mill  was  an  advocate  of 
this  method  for  the  election  of  executives  of  republics 
although  he  questioned  whether  it  was  the  best  for  all 
times  and  places.  "It  seems  better,"  he  said,  "that  the 
chief  magistrate  in  a  republic  should  be  appointed  avow- 
edly, as  the  chief  minister  in  a  constitutional  monarchy 
is  virtually,  by  the  representative  body.  The  party  which 
has  the  majority  in  parliament  would  then  as  a  rule  appoint 
its  own  leader;  who  is  always  one  of  the  foremost,  and 
often  the  very  foremost,  person  in  political  life."^  But 
this  is  by  no  means  always  true,  as  experience  with  the 
convention  method  of  nominating  candidates  in  the  United 
States  and  the  election  of  United  States  senators  by  the 
state  legislatures  have  clearly  shown. 


III.    THE   TERM    OF   THE   EXECUTIVE 

"The  ingredients  which  constitute  energy  in  the  execu-  views  of 
tive,"  said  Alexander  Hamilton,  "are:  first,  unity;  secondly,  *™* 
duration;  thirdly,  an  adequate  provision  for  its  support; 
fourthly,  competent  powers;"  while  those  "which  con- 
stitute safety  in  the  republican  sense  are,  first  a  due 
dependence  on  the  people;  secondly,  a  due  responsibility."  ^ 
The  element  of  duration  was,  he  observed,  necessary  to 

*  "  Representative  Government,"  p.  249.  Two  other  advocates  of  election  by  the 
legislature  are  Esmein,  "Droit  constitutionnel,"  pp.  483  ff. ;  and  Laveleye,  "Le 
Gouvernement  dans  la  Democratie,"  vol.  I,  pp.  347-349.  Esmein  denies  that  choice 
by  the  legislature  involves  a  violation  of  the  principle  of  the  separation  of  powers. 

*  "The  Federalist,"  No.  70.  The  numbering  here  is  that  observed  in  Ford's 
edition. 


538  THE   EXECUTIVE   DEPARTMENT 

secure  "personal  firmness  of  the  executive  magistrate  in  the 
employment  of  his  constitutional  powers"  and  to  insure  the 
"stability  of  the  system  of  administration  which  may  have 
been  adopted  under  his  auspices."  ^  Hamilton  stood  al- 
most alone  among  the  distinguished  men  who  framed  the 
constitution  of  the  United  States  in  advocating  a  good 
behavior  tenure  for  the  executive,  the  idea  being  repug- 
nant to  the  views  of  the  majority  of  the  delegates  as  be- 
ing inconsistent  with  republican  ideas,  and  hence  it  received 
little  consideration  at  the  hands  of  the  convention.^  Con- 
cerning the  length  of  term  sufficient  to  secure  the  elements 
of  firmness  in  the  executive  and  stability  in  the  adminis- 
tration, Hamilton  declared  that  "the  longer  the  duration 
in  office  the  greater  will  be  the  probability  of  obtaining 
so  important  an  advantage."  "It  is  a  general  principle 
of  human  nature,"  he  said,  "that  a  man  will  be  inter- 
ested in  whatever  he  possesses,  in  proportion  to  the  firm- 
ness or  precariousness  of  the  tenure  by  which  he  holds 
it;  will  be  less  attached  to  what  he  holds  by  a  momentary 
or  uncertain  title,  than  to  what  he  enjoys  by  a  durable  or 
certain  title;  and,  of  course,  will  be  willing  to  risk  more 
for  the  sake  of  the  one,  than  for  the  sake  of  the  other. 
This  remark  is  not  less  applicable  to  a  political  privilege, 
or  honor,  or  trust  than  to  any  article  of  personal  prop- 
erty. The  inference  from  it  is,  that  a  man  acting  in  the 
capacity  of  chief  magistrate,  under  a  consciousness  that 
in  a  very  short  time  he  must  lay  down  his  office,  will  be 
apt  to  feel  himself  too  little  interested  in  it  to  hazard 
any  material  censure  or  perplexity,  from  the  independent 
exertion  of  his  powers,  or  from  encountering  the  ill  humors, 
however  transient,  which  may  happen  to  prevail  either  in 
a  considerable  part  of  the  society  itself,  or  in  a  predominant 

»  "The  Federalist,"  No.  71. 

^  Madison  and  Jay  also  favored  the  good  behavior  tenure  for  the  President.  After 
it  was  decided  to  make  the  office  elective  Hamilton  seems  to  have  changed  his  opinion. 
See  Story,  "Commentaries,"  sec.  1435,  note  2. 


THE  TERM  OF  THE  EXECUTIVE         539 

faction  of  the  legislative  body."  ^  In  this  opinion  Judge  judge 
Story  fully  concurred.  Few  men,  he  declared,  would  be  opi2on 
willing  to  commit  themselves  to  a  course  of  policy  whose 
wisdom  might  be  perfectly  clear  to  themselves  if  they 
could  not  be  permitted  to  complete  what  they  had  begun. 
"Of  what  consequence,"  he  observed,  "will  it  be  to  form 
the  best  plans  of  executive  administration,  if  they  are 
perpetually  passing  into  new  hands  before  they  are  ma- 
tured, or  may  be  defeated  at  the  moment  when  their 
reasonableness  and  their  value  cannot  be  understood  or 
realized  by  the  public  —  who  will  plant  when  he  can 
never  reap  ?  "  ^ 

That  the  term  of  the  executive  ought  to  be  long  enough  practice 
to  secure  these  advantages  no  one  will  deny,  but  as  to  what  st^es^*™ 
this  period  is,  the  testimony  of  political  writers  and  the 
practice  of  states  differ.  In  practice,  the  executive  tenure 
ranges  from  one  year,  which  is  the  rule  in  several  of  the 
North  American  states,  to  seven  years,  which  is  the  term  of 
the  executive  of  the  French  Republic.  In  the  states  of 
Massachusetts  and  Rhode  Island  the  executive  is  elected 
annually,  in  about  two  thirds  of  the  states  the  term  is  two 
years,  in  the  rest  it  is  four  years.  The  term  of  the  Swiss 
Executive  Council  is  three  years;  that  of  the  presidents  of 
the  United  States  and  Brazil,  four  years;  the  national 
executive  of  Chile  is  chosen  for  five  years;  and  those  of 
Argentina  and  Mexico,  for  six  years.  The  chief  executives 
of  the  self-governing  colonies  of  Great  Britain  hold  during 
the  pleasure  of  the  crown ;  and  the  cabinets  in  states  having 
the  cabinet  system  of  government  hold  office,  of  course, 
so  long  as  they  are  able  to  command  the  support  of  the 
legislature,  or  until  they  are  dismissed  by  the  executive, 
or  the  parliament  is  dissolved  or  expires  by  limitation.  The 
average  term  of  the  executive  in  republican  states  is  in  the 
neighborhood  of  four  years,  though  in  the  case  of  the  local 
executives  of  the  North  Arp.erican  states  it  is  less.     The 

'  "The  Federalist,"  No.  71.  '  "Commentaries,"  sec.  1433. 


540  THE   EXECUTIVE   DEPARTMENT 

one-year  terms  which  prevail  in  some  of  the  New  England 
states  are  survivals  of  the  early  American  notion  that  annual 
elections  are  an  essential  protection  against  tyranny  and 
oppression. 

The  argument  in  favor  of  short  tenures  for  the  executive 
is  that  the  shorter  the  period  of  the  office  the  greater  the 
security  against  abuses  of  power;  ^  and  conversely,  the 
longer  the  term,  the  less  will  be  the  means  of  enforcing 
responsibility  and  the  greater  the  personal  ambition  of  the 
executive.  The  belief  has  always  been  widespread  in  demo- 
cratic countries  that  executives  with  long  tenures  are  ex- 
posed to  a  strong  temptation  to  transform  their  offices  by 
means  of  a  coup  d'etat  into  monarchical  tenures,  as  Napo- 
leon did  when  he  converted  his  consulship  of  ten  years  into 
one  for  life  and  then  into  an  imperial  office.  On  the  other 
hand,  as  Judge  Story  has  remarked,  the  testimony  of  expe- 
rience shows  that  a  very  short  term  is,  practically  speak- 
ing, equivalent  to  a  surrender  of  the  executive  power,  as  a 
check  in  government,  and  besides  leads  to  "an  intolerable 
vacillation  and  imbecility."  ^  It  is  difficult  to  see  what 
can  be  said  in  favor  of  limiting  the  term  to  a  single  year. 
No  important  constructive  policy  can  be  formulated  and 
carried  through  in  so  short  a  time;  and  unless  the  executive 
were  reasonably  sure  of  a  reelection  he  would  hardly  feel 
warranted  in  entering  upon  a  new  policy  which  would  have 
to  be  bequeathed  unfinished  to  his  successor.  In  short, 
continuity  of  executive  policy  and  stability  of  administra- 
tion are  impossible  under  such  conditions.  An  executive 
so  restricted  as  to  tenure  is  likely  therefore  to  be  timid, 
weak,  lacking  in  independence,  and  without  a  policy.  "A 
man  is  apt  to  take  a  slender  interest,"  said  Hamilton,  "in 
so  short-lived  an  advantage  and  to  feel  little  inducement 
to  expose   himself   to  any  considerable  inconvenience   or 

*  Compare  Esmein,  "  Droit  constitutionnel,"  p.  479. 

*  "  Commentaries,"  sec.  1435.  Compare  Wilson  ("  Congressional  Government," 
p.  255),  on  the  "  unrepublicanism  "  of  short  terms. 


THE   TERM   OF   THE   EXECUTIVE  541 

hazard."  ^  The  most,  he  added,  that  could  be  expected  of 
the  majority  of  men  in  such  positions  would  be  the  nega- 
tive merit  of  not  doing  harm  instead  of  the  positive  merit 
of  doing  good.^ 

Moreover,  unless  the  practice  of  reelection  is  followed, 
the  office  must  continually  be  occupied  by  an  inexperi- 
enced executive,  since  he  cannot  acquire  any  considerable 
degree  of  familiarity  with  the  duties  of  the  position  in  so 
brief  a  period.  Finally,  short  tenures  necessitate  a  fre- 
quent recurrence  of  elections,  with  the  Inevitable  distrac- 
tions and  disturbance  to  business  that  are  inseparable 
from  important  political  contests.^  A  four-year  tenure 
has  much  more  to  commend  it.  It  is  a  period,  observed 
Chancellor  Kent,  perhaps  reasonably  long  enough  to  make 
the  executive  "feel  firm  and  independent  in  the  discharge 
of  his  trust  and  to  give  stability  and  some  degree  of 
maturity  to  his  system  of  administration"  and  "certainly 
short  enough  to  place  him  under  a  dire  sense  of  depend- 
ence on  the  public  approbation."  ^  At  all  events,  it  is  not 
long  enough,  as  Judge  Story  has  remarked,  to  justify  any 
alarms  for  the  public  safety.^ 

Closely  connected  with  the  length  of  term  is  the  question  The  Ques- 
of  reeligibility  of  the  executive  to  a  second  term.  The  con-  ^^^^^^li^' 
stitution  of  the  United  States,  which  fixes  the  term  of  the 

»  "The  Federalist,"  No.  71.  ^  ji,^^^^  ^^^  ^2. 

'  Compare  De  Tocqueville,  "Democracy  in  America,"  vol.  I,  p.  221,  on  the  evils 
of  frequent  elections  in  America. 

*  "  Commentaries,"  vol.  I,  p.  280. 

*  "Commentaries,"  sec.  1439.  See  also  Rawle,  "On  the  Constitution,"  ch.  31.  , 
Story  expressed  a  doubt  whether  in  point  of  firmness  and  independence  the  President 
of  the  United  States  vi^ould  be  equal  to  the  task  assigned  by  the  constitution  in 
view  of  his  short  term.  There  were  important  reasons,  he  said,  why  he  should  have 
a  longer  term  than  the  state  executive,  the  chief  one  being  the  difference  in  the  nature 
of  their  duties.  The  duties  to  be  performed  by  the  President,  both  at  home  and  abroad, 
he  said,  were  so  various  and  complicated  as  not  only  to  require  great  talents  and  great 
wisdom,  but  also  long  experience  in  office,  to  acquire  what  may  be  deemed  the  habits 
of  administration,  and  a  steadiness  as  well  as  comprehensiveness  of  view  of  all  the 
bearings  of  measures.  The  duties  of  the  state  executive,  on  the  contrary,  were 
few  and  confined  to  a  narrow  range.     "  Commentaries,"  sec.  1440. 


542 


THE   EXECUTIVE   DEPARTMENT 


Argument 
against 
Regligi- 
bility 


President  at  four  years,  expressly  declares  that  he  shall  be 
eligible  to  succeed  himself  and  there  is  no  constitutional 
limitation  as  to  the  number  of  terms  which  he  may  serve. 
Tradition  and  custom,  however,  have  limited  the  number 
to  two,  and,  with  a  single  exception,  no  incumbent  of  the 
office  has  ever  attempted  to  break  this  well-established 
rule,  while  several  have  refused  to  be  candidates  for  a 
third  term  in  the  face  of  a  public  sentiment  which  de- 
manded their  reelection.  This  usage,  observed  Chan- 
cellor Kent,  has  indirectly  established  by  the  force  of 
public  opinion  "a  salutary  limitation  to  his  capacity  for  a 
continuance  in  office."  *  The  constitution  of  the  Southern 
Confederacy  fixed  the  term  of  the  executive  at  six  years 
and  declared  the  president  ineligible  to  succeed  himself, 
and  this  principle  has  been  introduced  into  the  constitu- 
tions of  some  of  the  Latin  American  states.^  Other 
constitutions,  notably  those  of  Argentina,  Brazil,  and 
Chile,  forbid  the  executive  to  succeed  himself,  but  declare 
him  to  be  reeligible  after  the  lapse  of  an  intervening  term.^ 
The  constitution  of  Mexico,  however,  fixes  the  term  at 
six  years,*  and  although  nothing  is  said  concerning  the 
reeligibility  of  the  executive,  the  present  incumbent  has 
been  continuously  reelected  since  1884.  The  president  of 
the  French  Republic,  although  possessing  the  longest  term 
of  any  elective  executive,  is  eligible  to  succeed  himself.^ 

The  principal  argument  In  favor  of  restricting  the  ex- 
ecutive to  a  single  term  is  that  it  would  serve  as  a  check 
upon  his  personal  ambition  and  prevent  him  from  a  "cring- 

'  "Commentaries,"  vol.  I,  p.  282. 

'  A  proposition  to  fix  the  term  of  the  President  of  the  United  States  at  seven  years 
was  adopted  by  a  majority  of  the  delegates  in  the  Philadelphia  convention,  but  upon 
reconsideration  the  term  was  reduced  to  four. 

'  The  French  Constitutions  of  1793  and  1848  made  the  executive  ineligible  to  suc- 
ceed himself,  though  he  was  eligible  to  a  reelection  after  an  interval  of  five  years. 
This  prohibition  was  one  of  the  causes  which  led  to  the  coup  d'etat  by  Louis  Napo- 
leon in  December,  1851.     See  Esmein,  op.  cit.,  pp.  479,  543. 

••  By  an  amendment  adopted  in  1904.     Prior  to  that  date  the  term  was  four  years 

•  "Loi  constitutionnel  "  of  Feb.  25,  1875,  art.  I. 


THE   TERM    OF   THE    EXECUTIVE  543 

Ing  subserviency"  to  procure  his  reelection  or  from  resort- 
ing to  corrupt  intrigues  for  the  maintenance  of  his  power/ 
If  the  executive  may  be  immediately  reelected,  it  is  con- 
tended, the  value  of  short  terms  is  in  effect  destroyed.  In- 
eligibility to  a  second  term,  therefore,  would  tend  to  secure 
greater  independence  in  the  executive  and  at  the  same  time 
greater  security  to  the  people.  An  executive  capable  of 
succeeding  himself  Is  exposed  to  a  strong  temptation  to 
conduct  his  administration  with  the  one  end  in  view  of 
securing  a  reelection.  He  is  tempted,  therefore,  to  employ 
the  resources  at  his  command,  even  to  the  prostitution  of 
his  high  office  for  this  purpose.^ 

Writing  on  this  point  more  than  three  quarters  of  a  Views 
century  ago,  De  Tocqueville  declared:   "It  is  impossible  xocque- 
to  consider  the  ordinary  course  of  affairs  In  the  United  ^^^^ 
States  without  perceiving  that  the  desire  of  being  reelected 
is  the  chief  aim  of  the  President;  that  his  whole  adminis- 
tration, and  even  his  most  indifferent  measures,  tend  to 
this  object;  and  that,  as  the  crisis  approaches,  his  personal 
interest  takes  the  place  of  his  Interest  in  the  public  good. 
The  principle  of  reeligibillty  renders  the  corrupt  influence 
of  elective  government  still  more  extensive  and  pernicious. 

^  Story,  "Commentaries,"  sec.  1442;  "The  Pederallst,"  No.  72;  and  Rawle, 
"On  the  Constitution,"  ch.  31.  "Intrigue  and  corruption,"  said  De  Tocqueville, 
"  are  the  natural  defects  of  elective  government ;  but  when  the  head  of  the  state  can 
be  reelected,  these  evils  rise  to  a  great  height  and  compromise  the  very  existence  of 
the  country."     "Democracy  in  America,"  vol.  I,  p.  142. 

^  Compare  Esmein,  "  Droit  constitutionnel,"  p.  478.  Thomas  Jefferson  appears 
to  have  entertained  the  opinion  in  1787  that  the  chief  executive  ought  to  be  restricted 
to  a  single  term,  though  he  himself  did  not  scruple  to  accept  a  reelection.  "  Reason 
and  experience  tell  us,"  he  said,  "that  the  chief  magistrate  will  always  be  reelected 
if  he  may  be  reelected.  He  is  then  an  officer  for  life."  Near  the  end  of  his  life, 
however,  he  wrote,  "My  wish  was  that  the  President  should  be  elected  for  seven 
years  and  be  forever  ineligible  afterwards.  This  term  I  thought  sufficient  to  ena- 
ble him,  with  the  concurrence  of  the  legislature,  to  carry  through  and  establish 
any  system  of  improvement  he  should  propose  for  the  common  good.  But  the  prac- 
tice adopted,  I  think,  is  better,  allowing  his  continuance  for  eight  3'ears  with  a 
liability  to  be  dropped  at  halfway  of  the  term,  making  that  a  period  of  probation." 
Jefiferson's  Works,  vol.  IV,  p.  565. 


544  THE   EXECUTIVE   DEPARTMENT 

It  tends  to  degrade  the  political  morality  of  the  people, 
and  to  substitute  adroitness  for  patriotism.  "  ^  Again  he 
affirmed,  what  cannot  be  denied,  that  "whatever  the  pre- 
rogatives of  the  executive  power  may  be,  the  period  which 
immediately  precedes  an  election,  and  the  moment  of  its 
duration,  must  always  be  considered  as  a  national  crisis, 
which  is  perilous  in  proportion  to  the  internal  embarrass- 
ments and  the  external  dangers  of  the  country."  More- 
over, if  the  executive  may  succeed  himself,  a  large  portion 
of  the  latter  part  of  his  first  term  will  be  occupied  with 
matters  relating  to  his  candidacy,  to  the  neglect  of  his 
official  duties.  On  this  point  De  Tocqueville  truthfully 
remarked  that  "at  the  approach  of  an  election  the  head  of 
the  executive  government  is  wholly  occupied  by  the  coming 
struggle;  his  future  plans  are  doubtful;  he  can  undertake 
nothing  new,  and  he  will  only  prosecute  with  indifference 
those  designs  which  another  will  perhaps  terminate."  ^ 
Advantage  Experience,  however,  shows  that  the  advantages  of 
bUky^^^^^'  reeligibility  are  greater  than  the  disadvantages.  By  no 
one  have  those  advantages  been  more  clearly  and  forcibly 
HamU-  stated  than  by  Hamilton  in  "The  Federalist."  The  reeli- 
Ar^ument  gi^ility  of  the  executive  is  necessary,  he  declared,  to  "enable 
the  people,  when  they  see  reason  to  approve  of  his  conduct, 
to  continue  him  in  the  station  in  order  to  prolong  the 
utility  of  his  talents  and  virtues,  and  to  secure  to  the  gov- 
ernment the  advantage  of  permanency  in  a  wise  system  of 
administration."  First  of  all,  the  restriction  of  the  executive 
to  a  single  brief  term  would  tend  to  diminish  the  induce- 
ments to  good  behavior.  "There  are  few  men,"  observed 
Hamilton,  "who  would  not  feel  much  less  zeal  in  the  dis- 
charge of  a  duty  when  they  were  conscious  that  the  ad- 
vantages of  the  station  with  which  it  was  connected  must 
be  relinquished  at  a  determinate  period,  than  when  they 
were  permitted  to  entertain  a  hope  of  obtaining,  by  merit- 

*  "Democracy  in  America"  (tr.  by  Reeves),  vol.  I,  p  142. 
» Ibid.,  p.  134. 


THE   TERM   OF   THE   EXECUTIVE  545 

ing,  a  continuance  of  them."  The  desire  of  reward  and 
fame,  he  continued,  is  one  of  the  strongest  incentives 
of  human  conduct;  and  the  best  security  for  the  fidehty 
of  mankind  is  to  make  their  interest  coincide  with  their 
duty.  Furthermore,  the  rule  of  ineHgibiUty  would  tend 
to  create  in  the  executive  a  propensity  to  make  the  best 
use  of  his  opportunity,  while  it  lasted,  for  promoting  his 
personal  ends,  and  he  "might  not  scruple  to  resort  to  the 
most  corrupt  expedients  to  make  the  harvest  as  abundant 
as  it  was  transitory."  ^  We  agree  with  Hamilton  that 
there  is  an  excess  of  refinement  in  the  idea  of  disabling 
the  people  from  continuing  in  office  those  who  have  en- 
titled themselves  to  the  public  approbation  and  confidence. 

If,  as  Hamilton  argued,  the  executive  could  expect  to 
prolong  his  honors  by  his  good  conduct  he  might  hesitate 
to  sacrifice  his  "appetite  for  gain."  But  with  the  "pros- 
pect before  him  of  approaching  an  inevitable  annihilation, 
his  avarice  would  be  likely  to  get  the  victory  over  his 
caution,  his  vanity,  or  his  ambition."  ^ 

In  the  next  place  the  effect  would  sometimes  be  to 
deprive  the  state  of  the  advantage  of  a  wise  and  experi- 
enced official  by  compelling  him  to  abandon  his  office  at 
the  very  time  when  by  reason  of  his  experience  he  is  best 
fitted  to  serve  it.  It  would,  says  Judge  Story,  be  equiva- 
lent to  banishing  merit  from  the  public  councils  because 
it  had  been  tried.  "What  could  be  more  strange,"  ob- 
served this  distinguished  jurist,  "than  to  declare  at  the 
moment  when  wisdom  was  acquired  that  the  possessor  of 

*  "The  Federalist,"  No.  72;   also  Story,  "Commentaries,"  sec.  1443. 

'  "The  Federalist,"  No.  72.  Hamilton  further  remarks  that  "an  ambitious  man, 
too,  when  he  found  himself  seated  on  the  summit  of  his  country's  honors,  when  he 
looked  forward  to  the  time  at  which  he  must  descend  from  the  exalted  eminence  for- 
ever, and  reflected  that  no  exertion  of  merit  on  his  part  could  save  him  from  the  un- 
welcome reverse;  such  a  man,  in  such  a  situation,  would  be  more  violently  tempted 
to  embrace  a  favorable  conjuncture  for  attempting  the  prolongation  of  his  power,  at 
every  personal  hazard,  than  if  he  had  the  probablity  of  answering  the  same  end  by 
doing  his  duty." 

POL.  SCI. — 35 


546  THE   EXECUTIVE   DEPARTMENT 

it  should  no  longer  be  enabled  to  use  it  for  the  very  purpose 
for  which  it  was  acquired."  ^  Finally  it  would,  to  quote 
Hamilton  again,  "operate  as  a  constitutional  interdiction 
of  stability  in  the  administration."  Every  election  would 
be  followed  by  an  interruption  in  the  continuity  of  execu- 
tive policies  and  the  latter  part  of  each  term  would  be  a 
period  of  doubt,  of  weakness,  and  passive  inactivity. 
The  administration,  in  short,  "  would  drift  along  without 
plan  or  policy.^ 

In  conclusion,  it  may  be  observed  that  the  wisdom  and 
expediency  of  restricting  the  executive  to  a  single  term 
necessarily  depend  to  a  large  extent  upon  the  length  of  the 
term.  Manifestly  an  executive  with  a  term  of  six  or  seven 
years  might  be  made  ineligible  to  a  second  term  with  far 
less  impropriety  than  one  whose  term  is  two  years.  If  the 
term  is  as  long  as  twenty  years,  the  incumbent  ought  to  be 
rendered  ineligible  to  succeed  himself  for  the  obvious 
reason  that  his  responsibility  would  be  "greatly  dimin- 
ished and  his  means  of  influence  and  patronage  immensely 
increased  so  as  to  check  in  a  great  measure  the  just  ex- 
pression of  public  opinion  and  the  free  exercise  of  the 
elective  franchise."  ^ 


IV.    THE    EXECUTIVE   POWER 

What  is  the  best  constitution  for  the  executive  depart- 
ment and  what  are  the  powers  with  which  it  should  be 
intrusted,  said  Judge  Story,  are  problems  among  the  most 
important  and  probably  the  most  difficult  of  solution  of 
any  involved  in  the  theory  of  free  governments.*     Con- 

^  "Commentaries,"  sec.  1444. 

*  "  I  am  so  near  the  time  of  my  retirement  from  oiSce,"  said  President  Jefferson,  on 
the  2istof  January,  1809  (six  weeks  before  the  expiration  of  his  term),  "that  I  feel  no 
passion,  I  take  no  part,  I  express  no  sentiment.  It  appears  to  me  just  to  leave  to 
my  successor  the  commencement  of  those  measures  which  he  will  have  to  prosecute 
and  for  which  he  will  be  responsible." 

'  Story,  "Commentaries,"  sec.  1449.  *  Ibid.,  sec.  1410. 


THE   EXECUTIVE   POWER  547 

cerning  the  first  of  these  problems  we  have  already  written ; 
it  remains  now  to  consider  the  powers  and  duties  which 
properly  belong  to  the  executive  department. 

With  regard  to  certain  general  principles,  the  political  Executive 
thought  and  practice  of  modern  states  are  in  substantial  Expressly 
agreement.     On  one  point,  however,  there  is  an  important  conferred 
difference  between  the  theories  which  prevail  in   monar- 
chical states  and  those  which  prevail  in  republics.     Gen- 
erally speaking,  in  republics  only  those  powers  may  be 
exercised  by  the  executive  which  are  expressly  conferred  by 
the  constitution  and   laws,   or  which  may  be  reasonably 
inferred  from  those  expressly  granted,  or  which  may  prop- 
erly be  considered  as  inherent  in  the  nature  of  the  execu- 
tive office.     In  states  having  hereditary  executives,  on  the 
contrary,  there  is  a  large  undefined  residuary  power  which 
goes  under  the  name  of  the   "royal  prerogative."     This  Preroga- 
power    has    been    described    by    Professor    Dicey    as    the  *^^® 
"residue  of  discretionary  authority  left  at  any  moment 
in  the   hands  of   the  king";    that  is,  what  is  left  of  his 
ancient  customary  or  common  law  powers.^     It  does  not 
therefore  rest  upon  statutory  authority.     In  certain  do- 
mains of  administration  this  residuary  power  is  still  quite 
extensive,  though  the  tendency  has  been  to  restrict  and 
regulate  it  until  in  many  cases  it  is  not  clear  whether  the 
authority  exercised  is  statutory  or  residuary.^     In  states 
having  elective  executives,  on  the  other  hand,  there  is  but 
little  of  such  authority  remaining  with  the  executive. 

Roughly  speaking,  we  may  classify  the  executive  power 
under  the  following  heads : 

First,  that  which  relates  to  the  conduct  of  foreign  rela-  ciassifi- 


tions  and  which  we  may  denominate  the  diplomatic 


cation  of 
the  Powers 
power.  of  the 

Second,  that  which  has  to  do  with  the  execution  of  the 

^  "Law  of  the  Constitution  "  (2d  edition),  p.  353. 

^Compare  Lowell,  "The  Government  of  England,"  vol.  I,  p.  19. 


lomatic 
Power 


548  THE   EXECUTIVE   DEPARTMENT 

laws  and  the  administration  of  the  government;    this 

may  be  denominated  the  administrative  power. 
Third,  that  which  relates  to  the  conduct  of  war  and  which 

may  be  described  as  the  mihtary  power. 
Fourth,  the  power  to  grant  pardons  to  persons  charged 

with  or  convicted  of  crime;    this  may  be  called  the 

judicial  power  of  the  executive. 
Fifth,  that  which  relates  to  legislation,  or  the  legislative 

power. 

The  Dip-  The  constitutions  of  all  states  Intrust  the  executive,  either 
alone  or  in  conjunction  with  the  legislature  or  one  chamber 
thereof,  with  the  authority  to  negotiate  treaties  and  other 
international  agreements  with  foreign  states.  Strictly 
speaking,  the  treaty-making  power  is  neither  purely  execu- 
tive nor  legislative  in  character.  It  constitutes,  as  Es- 
mein  remarks,  a  sort  of  mixed  zone  occupied  at  the  sam.e 
time  by  both  the  legislative  and  executive  authorities.^ 
But  whether  it  be  executive  or  legislative  in  character,  there 
is  practically  no  difference  of  opinion  with  regard  to  the 
wisdom  of  Intrusting  it  to  the  executive.  The  legislature, 
or  one  chamber  of  it,  however,  may  very  properly  be 
vested  with  the  negative  power  of  ratification  as  a  means 
of  checking  the  errors  or  abuses  of  an  unwise,  ambitious,  or 
unscrupulous  executive,  though  owing  to  the  peculiar  nature 
of  the  treaty-making  power,  the  legislature  cannot  wisely 
be  allowed  a  direct  participation  in  the  negotiation.  Alex- 
ander Hamilton  has  well  observed  that  "accurate  and 
comprehensive  knowledge  of  foreign  politics,  a  steady  and 
systematic  adherence  to  the  same  views,  a  nice  and  uniform 
sensibility  to  national  character,  decision,  secrecy,  and 
dispatch  are  Incompatible  with  the  genius  of  a  body  so 
variable  and  so  numerous."  The  "fluctuating  and  mul- 
titudinous composition  of  the  legislature,"  he  continues, 
"forbid  us  to  expect  In  it  qualities  which  are  essential  to 

'  "Droit  constitutionnel,"  p.  568. 


THE   EXECUTIVE   POWER  549 

the  proper  execution  of  such  a  trust."  *  Nevertheless,  as 
Story  has  observed,  "it  is  too  much  to  expect  that  a  free 
people  would  confide  to  a  single  magistrate,  however  re- 
spectable, the  sole  authority  to  act  conclusively  upon 
the  subject  of  treaties.^ 

In  a  few  monarchical  states  like  Great  Britain,  this  power  partidpa- 
is  exclusively  in  the  hands  of  the  executive,  parliament  !|°V*  • 
having  no  share  except  where  legislation  may  be  necessary  lature 
to  perfect  the  treaty  or  carry  it  into  effect.  In  such  states, 
therefore,  the  executive  is  both  the  negotiating  and  ratify- 
ing authority.  But  in  the  majority  of  states,  monarchies 
as  well  as  republics,  the  assent  of  the  legislature  or  one 
branch  of  it  is  essential  to  the  validity  of  all  treaties  or  cer- 
tain classes  of  them.  In  the  United  States,  for  example, 
the  consent  of  the  Senate  is  required  by  the  constitution, 
though  the  right  of  the  executive  to  conclude  certain  kinds 
of  international  agreements  independently  of  the  senate  has 
long  been  acquiesced  in.'  In  practice  the  power  of  the 
United  States  Senate  is  not  restricted  to  the  mere  negative  ' 
function  of  ratifying  or  rejecting  the  treaties  negotiated  by 
the  executive,  but  it  claims  and  has  many  times  exercised 
the  right  of  amending  those  submitted  for  its  approval."* 
The  House  of  Representatives  likewise  exercises  an  in- 
direct share  in  the  treaty-making  power  through  its  right 
to  give  or  withhold  its  consent  to  legislation  which  may 
be  necessary  to  carry  into  execution  a  treaty;  such,  for 
example,  as  one  which  stipulates  for  an  appropriation  of 
money.  Moreover,  the  necessity  for  its  approval  of  trea- 
ties which  have  to  do  with  the  regulation  of  foreign  com- 

*  "The  Federalist,"  No.  75.  Compare  also  Esmein,  "Droit  constitutionnel,'* 
p.  568;  and  Kent,  "Commentaries,"  vol.  I,  pp.  285-286. 

'"Commentaries,"  sec.  151 2. 

'  See  an  article  by  Professor  J.  B.  Moore  on  "Treaties  and  Executive  Agree- 
ments," in  the  "Political  Science  Quarterly,"  for  September,  1905;  also  his  "Digest 
of  International  Law,"  sees.  752-753;  and  S.  B.  Crandall,  "Treaties,  Their  Making 
and  Enforcement,"  pp.  86-88. 

*  For  examples,  see  Crandall,  "Treaties,  Their  Making  and  Enforcement,"  p.  71. 


550  THE   EXECUTIVE   DEPARTMENT 

merce,  such  as  commercial  reciprocity  agreements,  is  now 
admitted  by  both  the  Senate  and  the  executive. 

In  the  German  Empire  treaties  negotiated  by  the  em- 
peror require  the  assent  of  the  legislature  only  when  they 
deal  with  subjects  upon  which  the  Reichstag  is  empowered 
to  legislate;  and  in  France  when  they  are  treaties  of  peace 
and  commerce  or  involve  the  finances  or  territory  of  the 
state  or  affect  the  personal  or  property  rights  of  French- 
men in  foreign  states.  The  French  chambers,  however, 
cannot  modify  or  amend  treaties  submitted  for  their 
consideration  and  must  approve  or  reject  them  as  a 
whole. ^ 

In  all  states  the  executive  is  vested  with  the  power  of 
appointing  and  receiving  diplomatic  representatives  and 
of  representing  the  state  in  all  international  relations; 
and  the  power  to  "receive"  is  not  merely  a  ceremonial 
function,  but  includes  the  important  right  to  recognize 
or  refuse  to  recognize  the  independence  of  the  state  from 
which  the  representative  is  accredited. 
The  Ad-  In  the  domain  of  internal  administration  the  principal 

tive  Power  power  and  duty  of  the  executive  is  to  direct  and  supervise 
the  execution  of  the  laws.  He  is  the  chief  of  the  admin- 
istration and  the  responsible  head  of  the  civil  service.  As 
such  he  exercises  a  wide  power  of  control  over  the  personnel 
of  the  administrative  service  through  his  power  to  appoint, 
direct,  and  remove  his  subordinates.^  In  most  republican 
states  and  in  a  few  of  the  monarchical  type  the  power  of  the 

*  Esmein,  "Droit  constitutionnel,"  p.  577. 

*  The  French  make  a  distinction  between  the  political  or  governmental  functions 
of  the  executive  and  the  purely  administrative  functions.  The  former  category 
includes  such  matters  as  the  summoning  and  opening  of  the  legislative  chambers,  the 
conduct  of  foreign  relations,  the  disposition  of  the  military  forces,  the  exercise  of  the 
right  of  pardon,  etc.  The  administrative  authority,  on  the  other  hand,  embraces  all 
those  matters  which  have  to  do  more  directly  with  the  strict  administration  of  the 
government,  such  as  the  appointment,  direction,  and  removal  of  officers;  the  issue 
of  instructions  and  ordinances;  and,  in  general,  all  acts  relating  more  directly  to  the 
execution  of  the  laws.  Cf.  Goodnow,  op.  cit.,  vol.  I,  pp.  50-51,  and  Duguit,  "  Droit 
constitutionnel,"  sec.  41. 


THE   EXECUTIVE   POWER  551 

chief  executive  is  limited  by  the  requirement  that  his  ap- 
pointments shall  be  approved  by  one  branch  of  the  legis- 
lature. Thus  in  the  United  States  the  nominations  of  the 
President  must  be  confirmed  by  the  Senate ;  and  this  practice 
is  imitated  in  many  of  the  Latin  American  constitutions 
and  in  those  of  the  component  states  of  the  American 
republic.  The  power  of  the  President  of  the  United  States 
to  remove,  however,  is  not  limited  by  the  necessity  of 
obtaining  the  consent  of  the  Senate,  as  is  the  case  in  making 
appointments. 

There  is  no  difference  of  opinion  in  regard  to  the  wisdom  Appoint- 
of  executive  appointment  of  the  higher  officials,  though  ^biic° 
as  to  whether  he  should  be  independent  in  his  choice  or  officials 
subject  to  the  control  of  a  council  or  a  branch  of  the  leg- 
islature, there  is  no  such  concurrence  of  opinion.  In  de- 
fense of  the  method  provided  by  the  constitution  of  the 
United  States,  Hamilton  observed  that  "it  is  not  easy  to 
conceive  a  plan  better  calculated  than  this  to  promote  a 
judicious  choice  of  men  for  filling  the  offices  of  the  Union 
and  it  will  not  need  proof  that  on  this  point  must  essen- 
tially depend  the  character  of  its  administration."  "One 
man  of  discernment,"  he  declared,  "is  better  fitted  to 
analyze  and  estimate  the  peculiar  qualities  adapted  to 
particular  offices  than  a  body  of  men  of  equal  or  perhaps 
even  of  superior  discernment."  "The  sole  and  undivided 
responsibility  of  the  executive  will,"  he  went  on  to  say, 
"naturally  begets  a  livelier  sense  of  duty  and  a  more  exact 
regard  to  reputation.  He  will  inquire  with  more  earnest- 
ness and  decide  with  more  impartiality.  He  will  have 
fewer  personal  attachments  to  gratify  than  a  body  of  men, 
and  will  be  less  liable  to  be  misled  by  his  private  friend- 
ships and  affections;  or,  at  all  events,  his  conduct  will  be 
more  open  to  scrutiny  and  less  liable  to  be  misunderstood." 
Nevertheless,  the  provision  that  the  nominations  of  the 
executive  should  receive  the  assent  of  the  Senate,  Ham- 
ilton admitted  would  be  "an  excellent  check  upon  a  spirit 


552 


THE   EXECUTIVE   DEPARTMENT 


of  favoritism  in  the  President  and  would  tend  greatly  to 
preventing  the  appointment  of  unfit  characters."  ^ 

Flowing  from  the  right  of  the  executive  to  select  and 
dismiss  his  subordinates  is  the  right  to  direct  them.  This 
power  varies  in  extent  in  different  countries,  and  in  the 
same  state  it  often  varies  as  regards  different  officials.  In 
monarchies,  and  in  republics  like  France,  where  monar- 
chical traditions  are  still  strong,  the  directing  power  of  the 
executive  is  very  great.  In  the  United  States  the  power 
of  the  executive  to  direct  his  subordinates  is,  however, 
often  limited  by  legislative  acts  which  specify  in  more  or 
less  detail  the  powers  and  duties  of  such  officials.  Thus 
the  act  of  Congress  organizing  the  Treasury  Department 
contains  no  reference  to  any  presidential  power  of  direc- 
tion and  indicates  that  the  administration  of  the  finances 
is  to  be  kept  under  the  control  of  Congress  rather  than 
under  the  executive.^  Various  statutes  confer  upon  the 
President  specific  authority  to  issue  instructions  and 
orders  to  the  heads  of  departments.  But  aside  from 
specific  grants  of  authority,  the  President  has  also  a  cer- 
tain power  of  direction  which  is  inherent  in  the  nature  of 
his  office  and  for  which  he  is  not  obliged  to  show  statutory 
authority.^ 

An  important  domain  of  executive  action  which  falls 
within  the  field  of  civil  administration  is  the  ordinance 
power;  that  is,  the  power  of  issuing  general  rules,  either  for 
regulating  matters  which  have  not  been  dealt  with  by  the 
legislature,  or  for  supplementing  and  filling  in  the  details 
of  existing  statutes.^  In  monarchical  states  and  in  some 
republics  like  France  the  executive  has  a  large  independ- 
ent power  of  legislation  in  regard  to  various  matters  which, 

'  "The  Federalist,"  No.  75.  See  also  Story,  "Commentaries,"  sec.  1529;  Kent, 
"Commentaries,"  vol.  I,  p.  288. 

'  Cf.  Fairlie,  "National  Administration  of  the  United  States,"  p.  16. 

'  "Opins.  of  Attys.  Gen."  vol.  6,  p.  365. 

■•  Goodnow,  "Comparative  Administrative  Law,"  vol.  I,  p.  28;  and  Fairlie^ 
"National  Administration  of  the  United  States,"  pp.  21  B. 


THE   EXECUTIVE   POWER  553 

it  is  believed,  can  be  better  dealt  with  by  executive  ordi- 
nance than  by  act  of  the  legislature/  In  the  United 
States,  however,  the  executive  has  little,  if  any,  power  of 
this  nature,  his  authority  to  issue  ordinances  being  ex- 
pressly delegated  by  act  of  Congress.  In  most  of  the  Euro- 
pean states  the  acts  of  the  legislature  rarely  descend  to 
details  in  laying  down  rules,  but  merely  embody  the  main 
essentials,  leaving  it  to  the  executive  to  supplement  the 
statute  and  supply  the  details  by  means  of  ordinances. 
Consequently  the  authority  of  the  executive  is  very  much 
greater  than  in  America,  where  the  statutes  are  more  elab- 
orate and  full  of  detail.^  An  American  statute  is  usually 
framed  so  as  to  anticipate  and  provide  for  every  possible 
contingency,  and  consequently  leaves  little  discretion  to 
the  executive.  Nevertheless,  the  ordinance  power  of  the 
President  of  the  United  States  is  much  larger  than  is  com- 
monly supposed.  Thus,  in  pursuance  of  authority  dele- 
gated by  Congress,  he  issues  codes  of  regulations  for  the 
government  of  the  army  and  navy,  the  postal  service, 
the  patent  office,  the  pension  office,  the  land  office,  the 
Indian  service,  the  customs  and  internal  revenue  service, 
the  consular  service,  the  administrative  civil  service,  and 
various  other  branches  of  the  administration.^  Compara- 
tively few  persons  realize  the  vastness  and  importance 
of  this  mass  of  executive-made  law,  much  of  which  binds 

'  On  the  nature  of  the  ordinance  power,  the  pouvoir  reglementaire  of  the  French, 
see  Berthelemy,  "  Le  Pouvoir  reglementaire  du  President  de  la  Republique  " ;  also 
his  "  Traite  elementaire  de  Droit  administratif,"  pp.  101-104;  Esmein,  "Droit 
constitutionnel,"  pp.  509-518;  Pradier-Fodere,  "  Precis  de  Droit  administratif," 
pt.  II,  ch.  2;  Hauriou,  "Droit  administratif,"  pp.  204  ff. ;  Duguit,  "Droit  con- 
stitutionnel," sees.  40,  140;  Jellinek,  "  Gesetz  und  Verordnung,"  pp.  376  ff. 
(pt.  II,  ch.  6) ;  Mareau,  "  Le  Reglement  administratif  " ;  and  Raiga,  "  Le  Pouvoir 
reglementaire  du  President." 

^  The  constitution  of  Prussia  (art.  45),  for  example,  gives  the  king  power  to  decree 
the  measures  necessary  to  the  execution  of  the  law.  The  constitutions  of  Belgium 
(art.  67)  and  Spain  (art.  45)  contain  similar  provisions.  In  pursuance  of  these 
provisions  a  large  mass  of  rules  having  the  force  of  law  have  been  issued. 

'  Compare  Fairlie,  "National  Administration  of  the  United  States,"  pp.  21-23, 
and  Lieber  on  "  Executive  Regulations." 


554  THE   EXECUTIVE   DEPARTMENT 

and  regulates,  not  only  the  conduct  of  the  great  body  of 
officials,  but  the  mass  of  private  citizens  as  well.  In  Eng- 
land, likewise,  the  "statutory  Rules  and  Orders"  of  an 
administrative  character  issued  by  the  public  authorities, 
and  particularly  the  Departments  of  State,  such  as  the 
Home  Office  and  the  Local  Government  Board,  fill  many 
volumes.^ 
The  The  military  powe~  of  the  executive  everywhere  includes 

PoweT^  the  supreme  command  of  the  army  and  navy  and  other 
military  forces  of  the  state.  In  some  monarchical  coun- 
tries, like  Great  Britain,  it  embraces  also  the  right  to  declare 
war.  In  the  United  States,  however,  this  latter  authority 
is  vested  in  Congress,  though  it  is  possible  for  the  executive 
in  his  conduct  of  the  foreign  relations  of  the  country  to 
bring  about  a  condition  of  affairs  which  will  make  war  a 
practical  necessity.  In  the  German  Empire  the  executive 
may  declare  offensive  war  only  with  the  consent  of  the 
Bundesrath,  and  in  France  the  assent  of  both  chambers  is 
necessary.^  In  both  countries  it  seems  to  be  admitted  that 
the  executive  can  declare  defensive  war  without  the  neces- 
sity of  obtaining  the  consent  of  the  legislature.  Nowhere, 
however,  even  where  the  executive  may  initiate  hostilities, 
can  extensive  war  be  waged  for  any  length  of  time  without 
the  approval  of  the  legislature,  since  it  and  not  the  execu- 
tive controls  the  source  of  supply.  Everywhere  the  right 
of  the  executive  to  dispose  of  the  forces,  plan  and  direct 
the  campaigns,  select  the  commanders,  establish  blockades, 
and,  in  general,  do  whatever  in  his  judgment  may  be  nec- 
essary or  expedient  to  destroy  the  resources  of  the  enemy 
and  prosecute  the  war  to  a  successful  conclusion,  is  recog- 
nized. Moreover,  it  belongs  to  the  executive  to  occupy, 
hold,  and  govern  temporarily  those  portions  of  the  enemy's 

*  Cf .  Lowell,  "Government  of  England,"   vol.  I,  p.  20.      Likewise  the  "new 
statutory  "  orders  in  Council  constitute  an  important  part  of  executive-made  law. 

*  For  a  review  of  French  thought  and  practice  on  this  point,  see  Esmein,  "Droit 
constitutionnel,"  pp.  583-588,  and  Duguit,  "  Droit  constitutionnel,"  pp.  992-995. 


THE   EXECUTIVE   POWER  555 

country  which  have  fallen  into  the  hands  of  the  armed 
forces,  and,  to  this  end,  he  may  displace  the  estab- 
lished civil  authority  and  institute  military  government, 
and  invest  it  with  such  powers  as  he  may  choose  to  confer 
upon  it/  Finally,  during  the  existence  of  the  war  it 
belongs  to  the  executive  to  suspend  the  ordinary  civil  guar- 
antees which  the  constitution  has  established  for  the  pro- 
tection of  the  individual  in^ti^ne  of  peace.  As  commander 
of  the  armed  forces  he  may  establish  martial  law,  suspend 
the  writ  of  habeas  corpus,  declare  certain  acts  ordinarily 
innocent  to  be  military  offenses  and  order  the  arrest  of 
persons  committing  them,  suppress  newspapers,  putiish 
disloyalty,  and  the  like. 

War  always  brings  a  vast  addition  to  the  power  of  the 
executive  and  enables  him  to  take  on  something  of  the 
character  of  a  dictator.  Nevertheless,  the  experience  of 
the  past  and  the  testimony  of  political  thinkers  almost 
without  exception  have  concurred  in  defending  the  practice 
of  concentrating  the  military  power  in  the  hands  of  a  single 
person.  In  the  military  organization  of  the  state  dualism 
is  out  of  place.  "Of  all  the  cares  or  concerns  of  govern- 
ment, the  direction  of  war,"  said  Alexander  Hamilton, 
"most  peculiarly  demands  those  qualities  which  distin- 
guish the  exercise  of  power  by  a  single  hand.  The  direc- 
tion of  war  implies  the  direction  of  the  common  strength; 
and  the  power  of  directing  and  employing  the  common 
strength  forms  a  useful  and  essential  part  in  the  definition 
of  the  executive  authority."^  "The  command  and  appli- 
cation of  the  public  force,"  said  Chancellor  Kent,  "to 
execute  the  laws,  to  maintain  peace,  and  to  resist  foreign 
invasion  are  powers  so  obviously  of  an  executive  nature 
and  require  the  exercise  of  qualities  so  peculiarly  adapted 
to  this  department,  that  they  have  always  been  exclusively 

*  Cf.  Thomas,  "  A  History  of  Military  Government  in  newly  acquired  Territory 
of  the  United  States,"  pp.  15-20. 
'  "The  Federalist,"  No.  74. 


556 


THE   EXECUTIVE   DEPARTMENT 


appropriated  to  it  in  every  well-organized  government  on 
earth." ^ 

Finally,  the  right  of  pardon  or  clemency  (the  droit  de 
grace  of  the  French)  is  by  common  consent  regarded  as  a 
natural  and  necessary  part  of  the  executive  power.  Bec- 
caria  stood  almost  alone  among  the  political  writers  of  his 
time  in  condemning  the  practice  of  granting  pardons  to 
those  whom  the  courts  have  convicted  of  crime. ^  Mon- 
tesquieu, while  considering  it  to  be  one  of  the  "most  beau- 
tiful and  necessary  attributes  of  monarchs,"  did  not  regard 
it  as  having  any  place  in  republics.^  Some  English  lawyers 
of  high  standing,  observed  Chancellor  Kent,  have  strangely 
concluded  that  it  cannot  exist  in  a  republic  because  "nothing 
higher  is  acknowledged  than  the  magistrate."  But,  as  Kent 
very  properly  adds,  "It  may  be  fairly  insisted  that  the  power 
may  exist  with  greater  safety  in  free  states  than  in  any  other 
forms  of  government,  because  abuses  of  the  discretion 
unavoidably  confided  to  the  magistrate  in  granting  pardons 
are  better  guarded  against  by  the  sense  of  responsibility 
under  which  he  acts."  * 

Considerations  of  justice  and  humanity  require  that  the 
principle  of  clemency  shall  have  a  place  in  the  administra- 
tion of  justice.  No  system  for  the  administration  of  justice 
is  or  can  be  free  from  imperfections.  It  is  impossible,  says 
the  French  scholar  Esmein,  that  there  should  not  occur 
at  times  in  the  administration  of  justice  judicial  errors 
which  would  result  in  the  condemnation  of  innocent  per- 
sons. One  purpose  of  the  pardon  is  to  correct  such  errors. 
It  is  impossible  also,  as  Esmein  remarks,  that  the  criminal 


'  "Commentaries,"  vol.  I,  p.  283. 

'  See  his  "  Des  Delits  et  des  Peines,"  ch.  21. 

'  "Esprit  des  Lois,"  bk.  VI,  ch.  21. 

*  "Commentaries,"  vol.  I,  p.  284.  The  English  lawyer  referred  to  by  Kent  was 
doubtless  Blackstone,  who  said,  "In  democracies  this  power  of  pardon  can  never  sub- 
sist, for  there  nothing  higher  is  acknowledged  than  the  magistrate  who  administers 
the  laws,  and  it  would  be  impolitic  for  the  power  of  judging  and  of  pardoning  to 
center  in  one  and  the  same  person." 


THE   EXECUTIVE   POWER  557 

law  In  fixing  the  punishment  of  crime  should  foresee  all  the 
extenuating  circumstances  that  may  have  attended  the 
commission  of  a  particular  offense/  No  man  in  his  senses, 
says  Judge  Story,  will  contend  that  any  system  of  laws  can 
provide  for  every  possible  shade  of  guilt  a  proportionate 
degree  of  punishment.  "The  most  that  ever  has  been  and 
ever  can  be  done  is  to  provide  for  the  punishment  of  crimes 
by  some  general  rules  and  within  some  general  limitations."  ^ 

The  power  of  pardon  then  being  required  by  considera-  Reason 
tions  of  humanity  and  sound  public  policy,  the  same  con-  ing^he*' 
siderations  conspire,   says  Hamilton,   to  dictate  that  this  fardon- 
benign  prerogative  should  be  fettered  or  embarrassed  as  in  the 
little  as  possible.^     "One  man,"  he  adds,  "appears  to  be  a  E^^<="*'^e 
more  eligible  dispenser  of  the  mercy  of  government  than  a 
body  of  men,"  and  this  has  not  only  been  the  testimony  of 
practically  all  political  writers,  but  for  the  most  part  it  has 
been  the  practice  of  states.     In  some  of  the  states  of  the 
American  Union  the  executive  in  the  exercise  of  this  power 
is,  however,  associated  with  an  advisory  board  which  is 
charged  with  investigating  applications  for  clemency  and 
making  recommendations  to  the  executive.      Many  con- 
stitutions except  the   offense   of   impeachment   from   the  Excep- 
pardoning  power  of  the  executive,  and  a  few  make  the  ^°^ 
same  exception    in    the  case  of  treason.      Impeachment 
is  a  punishment  usually  inflicted  by  the  legislature  for 
crimes  committed  by  high  officials,  and  the  purpose  of  the 
exception  Is  to  remove  the  temptation  of  the  executive  to 
shield  public  officials,  especially  those  of  his  own  selection, 
who  might  be  his  instruments  or  his  comrades  In  crlme.^ 
Treason  being  a  crime  "levelled  against   the   immediate 
being  of  the  society,  when  the  laws  have  once  ascertained 

*  "Droit  constitutionnel,"  p.  532. 

'  "Commentaries,"  sec.  1494;  also  Kent,  "Commentaries,"  vol.  I,  p.  284. 
'"The  Federalist,"  No.  74. 

*  Nevertheless  the  constitution  of  the  French  Republic  allows  the  president  to 
grant  pardons  to  ministers  who  have  been  impeached. 


558 


THE   EXECUTIVE   DEPARTMENT 


the  guilt  of  the  offender,  there  seems  a  fitness  in  referring 
the  expediency  of  an  act  of  mercy  towards  him  to  the  judg- 
ment of  the  legislature."  *  With  these  exceptions  the  power 
of  pardon  is  general  and  unqualified.  So  far  as  the  President 
of  the  United  States  is  concerned,  it  may  be  exercised  before 
as  well  as  after  conviction,  and  it  usually  embraces  the  re- 
mission of  fines  and  forfeitures  and  the  granting  of  reprieves 
and  commutations.  It  also  includes  the  right  of  amnesty, 
or  the  right  of  absolving  by  general  proclamation  large 
numbers  of  persons  from  the  consequences  of  their  acts  — 
a  power  which  considerations  of  humanity  and  public 
policy  make  a  necessity  in  times  of  internal  disturbance 
and  insurrection.^ 


V.     RELATION    OF   THE   EXECUTIVE   TO   THE   LEGISLATURE 
AND   TO   THE   JUDICIARY 

Partici-  "The  relation  of  the  supreme  executive  to  the  legislative 

thlExe^cu-  organ,"  observes  Sidgwick,  "is  one  of  the  knottiest  points 
tive  in  the  in  Constitutional  construction."  ^  In  practice  there  is  no 
tivl  Power  state  in  which  the  sphere  of  the  executive  power  is  totally 
separate  from  and  independent  of  that  of  the  legislature. 
Everywhere  the  executive  is  given  a  certain  power  of  con- 
trol over  the  proceedings  of  the  legislature  and  of  partici- 
pation directly  or  indirectly  in  the  function  of  legislation. 
Conversely,  in  all  states  the  executive  is  subject  in  certain 
respects  to  the  control  of  the  legislature." 

The  participation  of  the  executive  in  the  legislative  func- 
tion consists  in  the  power  to  summon  the  legislature  and  to 
open,  adjourn,  and  prorogue  its  sessions  and,  in  countries 
having  the  cabinet  system  of  government,  to  dissolve  the 

»  Hamilton,  "The  Federalist,"  No.  74. 

»  Compare,  on  this  point,  Esmein,  "  Droit  constitutionnel,"  pp.  533-534- 

'  "Elements  of  Politics,"  p.  429. 

♦On  the  subject  of  legislative  control  of  the  executive,  see  St.  Girons,  "La 
Separation  des  Pouvoirs,"  pp.  352  ff.  On  the  subject  of  the  executive  as  the  agent 
of  the  legislature  see  Berthelemy,  "  Le  Role  du  Pouvoir  executif  dans  les 
Republiques  modernes,"  bk.  II,  ch.  i. 


RELATION    OF   THE   EXECUTIVE   TO   LEGISLATURE    559 

mandates  of  its  members  and  to  order  new  elections.  In 
republican  states  the  power  of  the  executive  to  convene 
the  legislature  is  usually  limited  to  the  calling  of  extraor- 
dinary sessions  in  times  of  emergency  for  the  consideration 
of  special  matters  which  need  immediate  attention.  In  all 
such  states  either  the  constitution  or  the  statutes  prescribe 
the  date  for  the  assembling  of  the  regular  sessions  of  the 
legislature,  and  no  call  of  the  executive  is  necessary.  In 
states  having  the  cabinet  form  of  government,  however, 
the  legislature  usually  convenes  only  upon  a  call  of  the 
executive,  though  in  most  cases  the  executive  is  required 
to  summon  it  at  certain  stated  intervals.^ 

In  the  former  case  the  legislature  assembles  automati-  Assem- 
cally,  as  it  were,  and  opens  its  proceedings  without  the  lSi°!. 
participation  of  the  executive;   in  the  latter,  the  formality  twe,  etc. 
of  opening  the  session  is  a  function  of  the  executive  or  his 
representative,  who  performs  the  duty  with  more  or  less 
ceremony,  such  as  the  reading  of  a  speech  from  the  throne. 
In  the  European  monarchical  countries  the  right  of  the  ex- 
ecutive to  prorogue  the  sittings  of  the  legislature,  that  is,  to 
suspend  the  session  to  a  certain  date  in  the  future,  is  gener- 
ally provided  for  by  constitutional  provision,  though  in 
republics  such  a  power  is  rarely  recognized  as  belonging  to 
the  executive.     In  countries  having  the  cabinet  system  of 
government  the  executive  is  usually  invested  also  with  the 
power  of  adjourning  the  legislature  subject  to  certain  limi- 
tations.^ 

In  states  having    the   presidential   system   of   govern- 

^  In  Great  Britain,  for  example,  the  crown  must  convoke  Parliament  annually; 
in  the  German  Empire  the  emperor  must  call  the  two  chambers  together  once  each 
year;  and  in  France  the  constitution  requires  the  chambers  to  assemble  annually,  but 
the  president  must  summon  the  chambers  in  extraordinary  session  when  a  majority 
of  the  members  demand  it. 

*  Thus  in  the  German  Empire  the  emperor  is  forbidden  to  adjourn  the  Reichs- 
tag more  than  once  during  the  session  nor  for  a  longer  period  than  thirty  days  with- 
out its  consent.  In  France  the  president  is  limited  to  two  adjournments  during  the 
session,  neither  of  which  may  exceed  one  month  in  duration. 


560  THE   EXECUTIVE   DEPARTMENT 

ment  the  power  of  the  executive  is  usually  limited  to  ad- 
journing the  legislature  only  when  the  two  chambers  are 
unable  to  agree  upon  a  time  of  adjournment.  In  all  states 
having  the  cabinet  form  of  government  the  executive  ia 
vested  with  the  power  of  dissolving  the  legislature,  or  rather 
the  popular  chamber,  that  is,  of  terminating  the  mandates 
of  the  members  and  thus  putting  an  end  to  the  legal 
existence  of  the  chamber.  But  everywhere  the  exercise 
of  this  power  is  subject  to  certain  limitations.  With  a  few 
unimportant  exceptions  it  can  be  done  only  upon  the  advice 
of  a  responsible  ministry,  and  in  most  instances  the  dissolu- 
tion must  be  followed  within  a  certain  period  by  the  order- 
ing of  new  elections  and  the  convening  of  the  new  parlia- 
ment. Theoretically,  the  British  executive  is  not  subject 
to  any  limitations  regarding  the  ordering  of  new  elections 
and  the  summoning  of  the  new  parliament,  but  practically 
the  conditions  of  the  British  parliamentary  system  make  it 
a  necessity.^  Since  the  upper  chamber  under  the  cabinet 
system  rarely  rests  upon  a  popular  basis,  it  is,  of  course, 
unaffected  by  a  dissolution  of  the  lower  chamber. 

In  the  republics  of  America  where  the  presidential 
system  of  government  prevails,  the  right  of  the  executive  to 
dissolve  the  legislature  or  either  chamber  of  it  is  not  recog- 
nized. There  the  mandates  of  members  of  the  legislature 
are  terminated  only  by  the  legal  expiration  of  the  terms 
for  which  they  are  chosen  or  by  resignation  or  expulsion.' 
The  more  direct  participation  of  the  executive  in  legisla- 

*  In  the  German  Empire  the  emperor  is  forbidden  by  the  constitution  to  dissolve 
the  Reichstag  without  the  consent  of  the  Bundesrath,  and  the  dissolution  must  be 
followed  by  the  ordering  of  new  elections  within  sixty  days  and  the  assembling  of  the 
new  Reichstag  within  ninety  days.  In  France  the  president  is  empowered  to  dis- 
solve the  Chamber  of  Deputies  only  with  the  consent  of  the  senate,  but  there  are  no 
express  constitutional  requirements  as  to  the  ordering  of  new  elections  or  the  conven- 
ing of  the  newly  elected  chamber. 

*  On  the  subject  of  convening,  opening,  proroguing,  adjourning,  and  dissolving 
legislative  assemblies,  see  Esmein,  "  Droit  constitutionnel,"  pp.  542-564.  Duguit, 
"  Droit  constitutionnel,"  sec.  137,  and  St.  Girons,  "  La  Separation  des  Pouvoirs," 
pp. 336  ff. 


RELATION   OF   THE   EXECUTIVE   TO   LEGISLATURE    561 

tlon  consists  in  furnishing  the  legislature  with  information 
concerning  the  legislative  needs  of  the  country;  in  recom- 
mending measures  for  its  consideration;  sometimes,  though 
rarely,  in  the  initiation  of  legislative  projects;  in  approving 
or  disapproving  its  acts  and  in  promulgating  those  which 
are  approved. 

The  constitution  of  the  United  States  requires  the  chief  Executive 
executive  to  give  the  Congress,  from  time  to  time,  informa-  mendT-" 
tion  of  the  state  of  the  Union  and  to  recommend  for  its  con-  tions  of 
sideration  such  measures  as  he  shall  deem  necessary  and  tiveMeas- 
expedient.     A  similar  provision  is  in  substance  embodied  in  ""^ 
the  constitutions  of  most  of  the  Latin  American  republics. 
This  ' '  information , ' '  together  with  the  accompanying  recom- 
mendations, is  presented  in  a  more  or  less  elaborate  annual 
message  submitted  to  the  Congress  at  the  beginning  of  its 
regular  session  and  in  special  messages  transmitted  from 
time  to  time  during  the  course  of  the  session.     The  degree 
of  consideration  bestowed  by  the  Congress  upon  the  recom- 
mendations of  the  executive,  and  the  extent  to  which  the 
measures  proposed  by  him  are  adopted,  depend,  of  course, 
upon  the  degree  of  political  harmony  existing  between  the 
executive  and  the  legislature,  the  standing  and  influence  of 
the  executive  in  the  country  and  with  the  Congress,  the  wis- 
dom of  his  recommendations,  and  the  aggressiveness  with 
which  he  advocates  the  adoption  of  his  views.   The  influence 
of  certain  American  executives  upon  the  course  of  legisla- 
tion has  been  very  considerable,  while  that  of  others  has  not 
been  appreciable.^ 

The  wisdom  of  requiring  the  executive  to  furnish  the  in  the 
legislature  with  Information  concerning  the  state  of  public  states 
affairs  and  of  recommending  legislation  to  meet  the  needs 
and  conditions  of  the  public  service  rests  on  the  obvious 
fact  that  the  executive  from  the  very  nature  of  his  office 

'  For  a  systematic  study  of  this  subject  the  reader  is  referred  to  a  monograph  of 
M.  Henri  Bosc,  entitled,  "Le  Pouvoir  legislatif  des  Pr&idents  des  £tats-Unis" 

(1905)- 

POL,  SCI. — .36 


562 


THE  EXECUTIVE  DEPARTMENT 


Speeches 
from  the 
Throne 
in  Monar- 
chical 
Countries 


Executive 
Initiation 
of  Legis- 
lative 
Projects 


must  have  more  extensive  sources  of  information  in  re- 
gard to  domestic  and  foreign  affairs  than  the  legislature 
can  be  expected  to  possess.  "The  true  workings  of  the 
laws,"  observed  Judge  Story,  "  the  defects  in  the  nature  or 
arrangements  of  the  general  systems  of  trade,  finance,  and 
justice,  and  of  the  military,  naval,  and  civil  establishments 
are  more  readily  seen  and  are  more  constantly  under  the 
view  of  the  executive,  than  they  can  possibly  be  of  any 
other  department.  There  is  great  wisdom,  therefore,  in 
not  merely  allowing,  but  in  requiring,  the  President  to  lay 
before  Congress  all  facts  and  information  which  may  assist 
their  deliberations,  and  enabling  him  at  once  to  point  out 
the  evil  and  to  suggest  the  remedy."  ^ 

Corresponding  in  some  degree  to  the  "messages"  of  the 
executive  in  republican  states  is  the  customary  speech 
from  the  throne  delivered  by  the  monarchs  of  European 
countries  at  the  opening  of  parliamentary  sessions.  These 
speeches  from  the  throne  are  little  more,  however,  than 
formal  and  perfunctory  reviews  of  legislative  and  executive 
policy  and  statements  of  measures  to  be  laid  before  the 
legislature  at  the  ensuing  session.  They  are  frequently 
written  by  the  prime  minister  or  some  other  member  of 
the  cabinet,  and  are  thus  merely  announcements  of  ministe- 
rial policies  rather  than  executive  recommendations.  In 
states  where  the  cabinet  system  prevails  the  real  executive 
—  that  is,  the  ministry  —  enjoys,  of  course,  the  right  of 
initiating  legislative  projects  and  does  in  fact  prepare  and 
introduce  all  important  measures. 

In  the  German  Empire,  the  executive  has  the  right  of 
initiating  legislative  projects  directly,  through  the  agency 
of  those  members  in  the  upper  chamber  who  are  his  rep- 
resentatives and  appointees.  In  most  non-parliamentary 
states,  however,  like  the  republics  of  America,  none  of  the 
members  of  the  legislature  are  the  appointees  of  the  execu- 

*  "Commentaries,"  vol.  I,  sec.  1561.  See  also  Tucker's  Blackstone,  App 
343-345 ;  and  Rawle,  "  On  the  Constitution,"  ch.  16. 


RELATION   OF   THE   EXECUTIVE   TO   LEGISLATURE    563 

tive,  and  his  official  advisers  have  no  right  to  seats  in 
either  chamber.  But  there  are  always  in  the  legislature 
spokesmen  for  the  President,  "administration  members,"  as 
they  are  sometimes  called,  through  whom  his  measures  may 
be  laid  before  the  legislature  and  their  adoption  advocated. 

The  most  important  power  of  the  executive  in  com-  The  veto 
nection  with  legislation  arises  from  the  almost  universal  ^°^®^ 
practice  of  making  his  approval  essential  to  the  validity 
of  the  acts  of  the  legislature.  This  power  of  the  executive 
to  disapprove  acts  of  the  legislature  is  popularly  known  as 
the  "veto,"  or,  as  it  was  called  by  the  writers  of  "The  Fed- 
eralist," the  President's  "qualified  negative." 

In  a  few  states,  like  Great  Britain,  the  veto  power  is  Absolute 
absolute  and  cannot  be  overcome  by  any  vote  of  the  leg-  su^en-* 
islature,  however  large.  There,  however,  owing  to  the  sive 
thoroughgoing  development  which  the  cabinet  system  has 
undergone,  the  power  of  disapproval  has  necessarily  fallen 
into  desuetude  and  will  probably  not  be  exercised  again 
unless  in  very  exceptional  cases. ^  In  the  great  majority 
of  constitutions  the  veto  power  of  the  executive  is  qualified, 
that  is  to  say,  it  may  be  overridden  by  the  legislature,  pro- 
vided an  extraordinary  majority  of  the  members,  usually 
two  thirds,  concur  In  repassing  the  measure  disapproved. 
In  France,  the  veto  of  the  executive  is  merely  suspensive  in 
character,  and  is  employed  simply  to  compel  reconsideration 
by  the  legislature  of  measures  passed  by  it  and  disapproved 
by  the  President.  "It  is,"  says  Esmein,  "a  preservative 
against  possible  abuses  and  dangers  of  the  parliamentary 
initiative."  ^  A  repassage  of  the  vetoed  measure  by  an  ordi- 
nary majority  of  the  members  makes  It  a  valid  law,  not- 
withstanding the  interposition  of  the  executive  veto. 

^  The  veto  power  of  the  crown  has  not,  however,  been  lost  by  disuse,  for  it  is  a 
"fundamental  principle  of  the  English  constitution  that  the  crown  can  lose  no  rights 
by  its  own  negligence."  Burgess,  "Political  Science  and  Constitutional  Law,"  vol. 
II,  p.  203.  See  also  Lowell,  "  Government  of  England,"  vol.  I,  pp.  25-26,  where  the 
conditions  under  which  the  veto  might  still  be  employed  are  set  forth. 

*  "Droit  constitutionnel,"  p.  540. 


564  THE   EXECUTIVE   DEPARTMENT 

Purposes  The  principal  purposes  of  the  veto  are  to  prevent  hasty 
Veto*  arid  ill-considered  action  by  the  legislature,  and  to  furnish 
the  executive  with  the  means  of  defense  against  the  en- 
croachments of  the  legislature.  The  executive  is  pre- 
sumed to  know  better  than  the  legislature  what  are  his 
own  powers  and  prerogatives ;  ^  and  if  his  claim  to  a 
particular  prerogative  is  denied,  the  ultimate  decision 
ought  to  be  made  by  the  courts,  not  by  the  legislature. 
Hamilton  pointed  out  that  there  was  a  strong  tendency 
—  a  tendency  "almost  irresistible"  in  republican  govern- 
ments —  for  the  legislative  authority  to  absorb  every 
other,  "The  representatives  of  the  people,"  he  observed, 
"are  sometimes  inclined  to  fancy  that  they  are  the  people 
themselves  and  to  assert  an  imperious  control  over  the  other 
departments.  As  they  commonly  have  the  people  on  their 
side,  they  always  act  with  such  momentum  as  to  make  it 
very  difficult  for  the  other  members  of  the  government 
to  maintain  the  balance  of  the  constitution."^  A  "mere 
parchment  delineation"  of  the  boundaries  of  the  three  de- 
partments, Hamilton  went  on  to  remark,  is  insufficient, 
and  hence  each  must  be  furnished  with  "constitutional 
arms"  for  its  own  defense  against  the  "depredations  of 
the  other."  ^  Without  the  power  of  negative  the  executive 
might  be  gradually  stripped  of  his  authority  and  even  anni- 
hilated by  successive  resolutions  of  the  legislature.  The 
possibility  of  this  danger  is  all  the  greater  in  a  country 

'  Speaking  of  the  veto  power,  Daniel  Webster  said,  "It  was  vested  in  the  Presi- 
dent doubtless  as  a  guard  against  hasty  and  inconsiderate  legislation  and  against 
any  acts  inadvertently  passed  which  might  seem  to  encroach  on  the  just  authority  of 
the  other  branches  of  the  government."  Works,  vol.  I,  p.  255.  Compare  also  Burgess, 
who  observes  that  "  it  ought  to  be  employed  chiefly  to  prevent  encroachments  by  the 
legislature  upon  the  constitutional  prerogatives  of  the  executive  and  to  prevent  un- 
wise legislative  changes  in  the  existing  means  and  measures  of  the  administration." 
"Political  Science  and  Constitutional  Law,"  vol.  II,  p.  255. 

*  "The  Federalist,"  No.  70.  See  on  this  point  also  De  Tocqueville,  "  Democracy 
in  America,"  vol.  I,  p.  125. 

'  "The  Federalist,"  No.  73.  See  also  Story,  "Commentaries,"  vol.  I,  sec.  884; 
also  Kent,  "Commentaries,"  vol.  I,  lect.  XI. 


RELATION    OF   THE    EXECUTIVE   TO   LEGISLATURE    565 

like  the  United  States,  where  the  executive  has  neither  the 
right  of  adjournment,  of  prorogation,  nor  of  dissolution.* 
Reason  and  experience  teach  that  the  powers  of  neither 
department  ought  to  be  dependent  upon  the  will  of  the 
others,  but  each  ought  to  possess  a  constitutional  and 
effectual  power  of  self-defense  against  the  encroachments 
of  the  rest. 

The  veto  power,  continued  Hamilton,  not  only  serves  as  a  check 
a  "shield  to  the  executive,"  but  it  furnishes  an  additional  ^^^y  and 
security  against  the  enactment  of  unwise  legislation  and  Unwise 
establishes  a  salutary  check  upon  the  evil  effects  of  faction,  tion 
precipitancy,  and  want  of  consideration.     Where,  however, 
the  constitutional  rights  of  the  executive  are  not  involved, 
in  short,  where  the  difference  of  opinion  between  the  execu- 
tive and  the  legislature  relates  to  the  wisdom  or  expedi- 
ency of  the  measure,  the  veto  power  should  be  used  spar- 
ingly.    A  wise  executive  will  be  inclined  not  to  set  his  own 
judgment  against  that  of  the  legislature,  but  will  yield  to 
its  views  of  public  policy.     The  line  of  cleavage,  however, 
is  difficult  to  draw.^ 

Replying  to  the  objection  sometimes  urged  against  the  Argument 
veto  power,  that  it  is  not  to  be  presumed  that  a  single  o°the*°^* 
man  will  possess  more  virtue  and  wisdom  than  the  entire  Veto 
legislature,   Hamilton  said,   "The   propriety  of  the  thing 
does  not  turn  upon  the  supposition  of  superior  wisdom 
or  virtue   in  the   executive;    but    upon    the   supposition 
that  the  legislature  will  not  be  infallible;   that  the  love  of 
power  may  sometimes  betray  it  into  a  disposition  to  en- 
croach upon  the  rights  of  the  other  members  of  the  govern- 
ment;   that  a  spirit  of  faction  may  sometimes  pervert  its 
deliberations;    and  that  impressions  of  the  moment  may 
sometimes    hurry    it    into    measures    which    itself   would 
condemn."^     To  the  argument  sometimes  advanced  that 

'  Compare  on  this  point  Esmein,  "Droit  constitutionnel,"  p.  507. 

'  Compare  Burgess,  vol.  II,  p.  255. 

'  Compare  also  Kent,  vol.  I,  pp.,  240-241 ;  Story,  vol.  I,  sec.  885. 


566  THE   EXECUTIVE   DEPARTMENT 

the  veto  power  of  the  executive  may  be  employed  to  pre- 
vent the  enactment  of  good  laws  as  well  as  bad  ones,  it  may 
be  replied  that  the  power  cannot  be  effectually  exercised 
if  an  unusual  majority  of  the  legislature  is  favorably  dis- 
posed toward  the  law  vetoed.  Such  an  argument,  said 
Hamilton,  will  have  little  weight  with  those  who  have  a 
proper  appreciation  of  the  "mischiefs  of  that  inconstancy 
and  mutability  in  the  laws  which  form  the  greater  blemish 
in  the  character  and  genius  of  our  governments/  We 
should  rather  look  with  favor  upon  every  device  intended 
to  restrain  the  evils  of  our  legislation"  —  evils  which  since 
Hamilton's  day  have  certainly  grown  to  be  of  the  first 
magnitude.  Where  the  veto  power  is  qualified,  that  is, 
where  the  objection  of  the  executive  may  be  overcome 
by  the  legislature,  a  larger  number  than  a  bare  major- 
ity concurring,  the  means  is  provided  for  enabling  the 
executive  to  point  out  the  defects  of  legislation  submit- 
ted for  his  approval  and  of  compelling  a  reconsideration 
by  the  legislature  of  its  former  action.  In  short,  the 
qualified  negative,  when  exercised,  is  in  effect  an  appeal  to 
the  legislature  itself  and  merely  asks  a  revision  of  its  own 
judgment.^  Especially  is  this  true  in  the  United  States, 
where  the  executive  is  obliged  to  state  the  reasons  for  his 
objections  and  where  the  legislature  is  required  to  recon- 
sider measures  vetoed. 
Promui-  Finally,  it  is  the  constitutional  duty  of  the  executive  In 

PubUca*°**  most  states  to  promulgate  and   publish  the  acts  of  the 
tion  legislature.     Promulgation,   says   Esmein,    is   the   act   by 

which  the  chief  executive  declares  executory  {executoire) 
a  law  regularly  passed  by  the  legislative  body,  and  gives  to 
the  agents  of  the  state  authority  to  put  it  into  effect.  It  is 
in  the  nature  of  a  decree  whereby  the  executive  certifies 
that  the  law  has  been  properly  passed  and  by  which  he 
commands  its  execution.     It  is  a  juridical  act,  an  essential 

^  "The  Federalist,"  No.  73;   Story,  "Commentaries,"   vol.  I,  sec.  886. 
*  Compare  Story,  "Commentaries,"  vol.  I,  sec.  888. 


RELATION   OF   THE   EXECUTIVE   TO   LEGISLATURE    567 

Step  in  the  process  of  making  the  law  ready  for  execution. 
The  necessity  of  promulgation,  he  observes,  is  a  logical 
consequence  of  the  principle  of  the  separation  of  powers. 
The  law  is  complete  as  soon  as  it  has  been  voted  by  the 
legislative  body,  but  it  is  not  binding  until  it  has  been 
promulgated/  Publication,  on  the  other  hand,  is  the  act 
of  the  executive  by  which  the  law  that  has  been  passed 
and  promulgated  is  brought  to  the  knowledge  of  the 
people,  and  is  usually  accomplished  through  the  medium 
of  a  governmental  gazette  —  in  France,  the  Journal  officiel. 

The  constitution  of  France  requires  the  President  of  French 
the  republic  to  promulgate  the  laws,  but  leaves  to  his  own  German 
discretion  the  manner  of  promulgation,  subject  to  the  Practice 
limitation  that  not  more  than  one  month  may  intervene 
between  the  date  upon  which  the  law  is  transmitted  to 
him  by  the  legislature  and  the  date  of  publication,  which 
period  may  be  reduced  to  three  days  when  both  cham- 
bers shall  have  voted  that  promulgation  is  urgent.  Like- 
wise, the  constitution  of  the  German  Empire  confers 
upon  the  emperor  the  power  of  engrossment  (Ausfertigung) , 
promulgation,  and  publication.  By  the  act  of  engross- 
ment he  furnishes  the  bill  with  the  seal  of  authen- 
ticity; that  is,  certifies  that  it  has  been  enacted  by 
the  legislative  body  in  accordance  with  the  prescrip- 
tions of  the  constitution  governing  legislative  proce- 
dure.^ The  German  commentators  differ  as  to  whether 
in  case  a  law  is  free  from   formal    defects   but  possesses 

^  "Droit  constitutionnel,"  p.  503.  "Promulgation,"  says  Duguit,  op.  cit.,  p. 
looi,  "  is  the  act  by  which  the  executive  affirms  by  means  of  a  consecrated  formula 
that  the  law  has  been  regularly  voted  by  the  chambers,  that  it  must  be  applied  by 
the  administrative  and  judicial  authorities  and  that  it  is  obligatory  on  all."  It  is 
the  custom  in  France  to  cite  a  law  by  the  date  of  its  promulgation  though  some 
authors  maintain  that  promulgation  is  really  the  first  act  of  execution  and  hence  the 
date  of  the  law  is  the  date  when  it  was  voted  by  the  last  chamber.  See,  e.g.,  Du 
Crocq,  "  £tudes  de  Droit  public,"  pp.  1-17  ;  also  his  "  Droit  administratif,"  7th  ed., 
vol.  I,  p.  64. 

^  Laws  of  July  16,  1875,  ^^-  7>  sec.  i. 


568 


THE   EXECUTIVE   DEPARTMENT 


Relation 
of  the 
Executive 
to  the 
Judiciary 


Immunity 

of  the 

President 

from 

Judicial 

Control 


material  defects,  that  is,  has  not  been  constitutionally 
passed,  the  emperor  may  withhold  the  formula  of  authen- 
tication and  refuse  to  promulgate  such  a  law.^  But 
the  better  opinion  seems  to  be  in  favor  of  the  view  that 
such  a  power  belongs  to  the  emperor.  It  is  true  that  he 
has  no  veto  power,  as  emperor,  but  it  is  his  duty  to  in- 
quire whether  that  which  purports  to  be  a  law  has  in  fact 
been  passed  in  a  constitutional  manner.^  Publication  of 
the  law  is  effected  through  the  Imperial  Gazette  {Reichs- 
gesetzblatt),  and  the  law  goes  into  effect  fourteen  days  after 
publication.  No  law  possesses  any  binding  force  until  so 
published.  The  constitution  of  the  United  States  contains 
no  provision  concerning  the  promulgation  of  the  laws  by 
the  executive.  By  an  act  of  Congress  the  duty  has  been 
imposed  upon  the  Secretary  of  State  of  publishing  the  law 
in  certain  newspapers  as  soon  after  its  approval  by  the 
President  as  possible.  Publication  and  promulgation  are 
thus  treated  as  identical  in  form,  and  the  duty  is  purely 
ministerial. 

Turning  now  to  the  relation  of  the  executive  to  the 
judiciary,  we  may  note  that  the  responsibility  of  an  elective 
executive  may  be  either  for  criminal  acts  committed  by 
him  or  for  his  political  policies.  We  may  lay  it  down  as  a 
proposition  of  almost  universal  application  that  the  chief 
executive  cannot  be  subjected  to  the  control  of  the  courts 
either  for  his  criminal  acts  or  his  political  policies.  It  is  a 
general  principle  of  public  law  that  the  chief  executive 
should  be  exempt  from  the  jurisdiction  of  any  court  or 
magistrate  so  long  as  he  remains  in  ofhce. 

In  the  United  States  the  President  is  responsible  to  but 
one  body  for  his  criminal  acts,  namely,  the  Senate  organ- 
ized as  a  court  of  impeachment  —  a  court  whose  jurisdic- 

*  See  Laband,  "Staatsrecht  des  deutschen  Reiches,"  vol.  I,  sec.  56;  and  Schulze, 
"Lehrbuch  des  deutschen  Staatsrechts,"  p.  119. 

*  Compare  Howard,  "German  Empire,"  p.  119;  also  Burgess,  "Political 
Science,"  vol.  II,  p.  279. 


RELATION   OF   THE   EXECUTIVE   TO   LEGISLATURE    569 

tion  is  limited  to  the  removal  of  the  President  from  ofhce 
and  his  disqualification  from  again  holding  public  office.* 
He  cannot  be  arrested  or  in  any  manner  restrained  of 
liberty  or  interfered  with  by  the  order  of  any  court  or  com- 
pelled to  obey  any  judicial  process  or  to  give  evidence 
either  by  personal  testimony  or  deposition  in  any  court. 
The  courts  of  the  United  States  have  uniformly  declined  to 
issue  processes  against  him  or  to  restrain  him  by  injunction 
or  in  any  way  control  his  discretionary  authority.^  The 
immunity  of  the  President,  however,  from  responsibility 
to  the  courts  for  his  criminal  acts  ceases  with  the  expiration 
of  his  term  of  office.  As  soon  as  he  becomes  a  private 
citizen,  the  courts  may  take  jurisdiction  of  his  person  and 
compel  him  to  answer  for  his  misconduct.  Moreover,  the 
courts  have  no  scruples  against  inquiring  into  the  legality 
of  the  orders  and  regulations  issued  by  him  and  of  declaring 
them  null  and  void  when  in  their  opinion  they  are  not 
authorized  by  the  constitution  and  laws.      Furthermore, 

'  It  is  not  quite  clear  whether  the  power  of  the  House  of  Representatives  to  im- 
peach the  President  for  treason  or  felony  and  other  high  crimes  and  misdemeanors 
and  the  Senate  to  try  him  for  such  offenses  includes  acts  which  are  primarily  polit- 
ical, that  is,  acts  which  in  the  judgment  of  Congress  constitute  official  misconduct 
rather  than  violations  of  the  laws.  During  the  trial  of  Andrew  Johnson,  one  party 
in  Congress  asserted  the  right  to  try  the  President  for  other  offenses  than  those 
against  the  common  or  statute  law  which  were  not  indictable,  but  whether  their 
position  was  defensible  from  a  constitutional  point  of  view  there  is  a  difference  of 
opinion.  Compare  Dunning,  "Civil  War  and  Reconstruction,"  chapter  on  im- 
peachment of  President  Johnson;  and  Dewitt,  "The  Impeachment  and  Trial  of 
Andrew  Johnson,"  pp.  365-366. 

^  Marbury  v.  Madison,  i  Cranch  170;  Mississippi  v.  Johnson,  4  Wallace  475; 
Goodnow,  "Comparative  Administration  Law,"  vol.  II,  p.  208;  and  Finley  and 
Sanderson,  "The  American  Executive,"  ch.  4.  In  some  of  the  American  states  the 
courts  have  claimed  and  exercised  the  right  to  issue  the  writ  of  mandamus  against 
the  executive  to  compel  him  to  perform  a  purely  ministerial  duty ;  but  if  the  governor 
should  resist,  it  is  difi&cult  to  see  how  the  judiciary  could  enforce  its  orders.  It  would 
only  bring  about  a  conflict  between  the  executive  and  the  courts  which  would  end  in 
the  defeat  of  the  judiciary.  Other  courts  have  asserted  the  right  only  where  the 
executive  does  not  object  to  the  issue  of  the  mandamus.  Everywhere,  however, 
the  courts  take  the  view  that  they  have  no  control  whatever  over  the  purely  discretion- 
ary authority  of  the  executive. 


57° 


THE    EXECUTIVE   DEPARTMENT 


Criticism 
of  this 
Principle 


the  immunity  enjoyed  by  the  chief  executive  does  not  be- 
long to  his  subordinates.  Over  them  the  courts  freely 
exercise  control,  and  the  orders  of  the  President  are  no 
defense  for  violations  of  the  constitution  and  laws  by 
them.  As  the  President  acts  for  the  most  part  through 
subordinates,  the  courts  are  thus  enabled  to  restrain  him 
from  administering  the  government  in  violation  of  the 
constitution  and  the  laws. 

The  exemption  of  the  executive  from  the  control  of  the 
courts  has  been  criticised  by  some  doctrinaires  as  a  survi- 
val of  the  monarchical  doctrine  that  "the  king  can  do  no 
wrong,"  and  hence  as  being  dangerous  and  inconsistent 
with  the  theories  of  republican  government.  Experience 
and  reason,  however,  teach  that  the  principle  rests  upon 
considerations  of  political  necessity  and  sound  public 
policy.  It  is  impossible  to  subject  the  supreme  head  of  the 
government  to  the  control  of  the  courts  without  impairing 
his  independence,  interfering  with  the  discharge  of  his  high 
duties,  and  destroying  the  unity  of  the  executive  power. 
To  attempt  it  would  lead  to  useless  conflicts  between  the 
executive  and  the  judiciary,  since,  possessing  as  he  does 
the  machinery  of  execution,  he  may  successfully  resist  the 
execution  of  judicial  process  directed  against  him  or  pardon 
himself  of  any  punishment  which  a  court  might  attempt 
to  inflict  upon  him.  The  experience  of  the  past  shows  that 
the  dangers  prophesied  from  the  personal  independence  of 
the  executive  are  mostly  imaginary,  that  they  are,  indeed, 
far  less  than  those  which  would  follow  from  subjecting 
him  to  the  constant  interference  of  the  courts  and  exposing 
the  people  to  the  dangers  of  anarchy.^ 

'  Compare  Burgess,  op.  cit.,  vol.  II,  pp.  S46-247 ;  and  Finley  and  Sanderson, 
"The  American  Executive,"  p.  48. 


CHAPTER  XVII 

THE  JUDICIARY 

Suggested  Readings:  Ashley,  "Local  and  Central  Government," 
ch.  12;  Baldwin,  "  The  American  Judiciary,"  chs.  1-7;  Berthelemy, 
"Traite  eleraentaire  de  Droit  administratif,"  bk.  Ill,  ch.  i;  Blunt- 
SCHLI,  "Allgemeines  Staatsrecht,"  bk.  V,  ch.  i;  Burgess,  "Political 
Science  and  Constitutional  Law,"  pp.  347-368;  Coxe,  "The  Judicial 
Power  and  Unconstitutional  Legislation,"  pt.  II;  Dicey,  "Law  of  the 
Constitution,"  lect.  V,  also  his  "Law  and  Public  Opinion  in  England," 
lect.  XI;  DuGUiT,  "Droit  constitutionnel,"  sees.  36,  48;  Esmein, 
"Droit  constitutionnel,"  pt.  II,  ch.  6;  "  The  Federalist,"  Nos.  78  and 
79;  GooDNOW,  "  Principles  of  Administrative  Law,"  bk.  VI;  Hare, 
"Constitutional  Law,"  vol.  I,  lect.  VIII;  Kent,  "Commentaries," 
lect.  XIV;  Laveleye,  "Le  Gouvernement  dans  la  Democratie," 
vol.  I,  bk.  VI,  ch.  19;  LiEBER,  "Civil  Liberty  and  Self-government," 
ch.  18;  Lowell,  "Government  of  England,"  vol.  II,  chs.  59-62; 
Meyer,  "  Deutsches  Verwaltungsrecht,"  pt.  I,  sees.  9-15 ;  Ordronaux, 
"Constitutional  Legislation,"  ch.  7;  Posado,  "Tratado  de  Derecho 
Politico,"  vol.  II,  bk.  VI,  ch.  5;  Powell,  "Conclusiveness  of 
Administrative  Determinations,"  "American  Pohtical  Science  Re- 
view," vol.  I,  pp.  583-607;  SiDGWiCK,  "Elements  of  PoHtics," 
ch.  24;  Story,  "Commentaries,"  vol.  II,  ch.  38;  Thayer,  "Origin 
and  History  of  the  American  Doctrine  of  the  Right  of  the  Courts 
to  declare  Acts  of  the  Legislature  Unconstitutional,"  "  Harvard 
Law  Review,"  vol.  VII;  Wilson,  "Constitutional  Government  in 
the  United  States,"  ch.  6. 

I.    INDEPENDENCE   OF  THE   JUDICIARY 

It  has  been  well  observed  by  a  noted  jurist  and  com- 
mentator that  "in  every  well-organized  government — • 
with  reference  to  the  security  both  of  public  rights  and 
private  rights  —  it  is  indispensable  that  there  should  be  a 
judicial  department  to  ascertain  and  decide  rights,  to  pun- 
ish crimes,  to  administer  justice,  and  to  protect  the  inno- 
cent from  injury  and  usurpation."  ^     Where  there  is  no 

*  Rawle,  "On  the  Constitution,"  ch.  21.  Compare  also  the  remarks  of  Justice 
Simon  E.  Baldwin,  who  observes  that  "  no  government  can  live  and  flourish  without 
having  as  part  of  its  system  of  administration  of  civil  affairs  some  permanent  human 

571 


572  THE   JUDICIARY 

judicial  department  to  interpret  and  execute  the  law,  to  de- 
cide controversies,  and  to  enforce  rights,  "  the  government 
•  must  either  perish,"  said  Chancellor  Kent,  "  by  its  own  im- 
becility, or  the  other  departments  of  government  must  usurp 
powers,  for  the  purpose  of  commanding  obedience,  to  the 
destruction  of  liberty."  ^ 
independ-  It  has  been  contended  by  some  doctrinaires  that,  while 
Judiciary  i^i  monarchical  states  the  independence  of  the  judiciary 
may  be  essential  to  protect  the  people  from  the  arbitrary 
interference  and  oppression  of  the  crown  and  also  to  pre- 
vent the  judges  from  being  reduced  to  a  position  of  cring- 
ing subserviency  to  the  executive,  the  same  reasons  do  not 
apply  in  a  republic.^  But  experience  has  abundantly  shown 
that  the  independence  of  the  judiciar^^  is  just  as  essential 
to  protect  the  constitution  and  laws  against  the  encroach- 
ments of  party  spirit  and  the  tyranny  of  faction  in  a  repub- 
lic, as  it  is  in  a  monarchy  to  protect  the  rights  of  the 
subject  against  the  injustice  of  the  crown. ^ 

Upon  no  other  branch  of  the  government  are  the  people 
so  dependent  for  the  enjoyment  of  personal  security  and 
the  rights  of  property,  and  it  is  hardly  necessary  to  add 
that  the  degree  of  protection  thus  afforded  is  conditioned 
in  turn  upon  the  wisdom,  stability,  and  integrity  of  the 
courts,^     To  fulfill  its  high  purpose  the  judiciary  ought, 

force,  invested  with  acknowledged  and  supreme  authority,  and  always  in  a  posi- 
tion to  exercise  it  promptly  and  efficiently,  in  case  of  need,  on  any  proper  call." 
"The  American  Judiciary,"  p.  3. 

'"Commentaries,"  lect.  XIV. 

^  Thomas  Jefferson  was  a  notable  example  of  those  holding  this  view.  He  was 
a  strenuous  advocate  of  short  terms  for  all  judges,  federal  and  state  alike,  and  sug- 
gested six  years  as  the  maximum  term  for  the  former.  His  opinions  on  this  point, 
however,  were  probably  affected  by  his  well-known  hostility  to  the  federal  judiciary. 
He  discussed  the  judiciary  in  the  spirit  of  a  partisan,  particularly  after  his  contro- 
versy with  Marshall. 

'  Cf.  Kent,  op.  cit.,  vol.  I,  p.  294. 

*  Cf.  Story,  "Commentaries,"  vol.  II,  sec.  1574.  "Whatever,"  observed  Ed- 
mund Burke,  "  is  supreme  in  a  state,  it  ought  to  have,  as  much  as  possible,  its  judicial 
authority  so  constituted  as  not  only  not  to  depend  upon  it,  but  in  some  sort  to  balance 
it.     It  ought  to  give  security  to  its  justice  against  its  power.     It  ought  to  make  its 


INDEPENDENCE    OF   THE   JUDICIARY  573 

therefore,  to  possess  learning,  faithfulness  to  the  consti- 
tution, independence,  and  firmness  of  character.  The 
existence  of  such  qualities  must  depend  largely  upon  the 
mode  of  appointment  of  the  judges,  the  permanency  of 
their  tenure,  the  adequacy  of  the  provision  made  for  their 
support,  and  the  extent  and  nature  of  the  jurisdiction  con- 
ferred upon  them. 

First,  as  to  the  mode  of  appointment.  The  judiciary  Appoint- 
may  be  chosen  by  the  legislature,  by  popular  elec-  the°LegiS' 
tion,  or  by  appointment  of  the  executive,  either  with  or  ^**"" 
without  the  concurrence  of  a  council  or  one  of  the  cham- 
bers of  the  legislature.  Choice  by  the  legislature  has  not 
commended  itself  generally  to  statesmen  in  the  past  be- 
cause it  renders  the  judiciary  to  a  certain  extent  depend- 
ent upon  a  coordinate  department  of  the  government,  in 
violation  of  the  principle  of  the  separation  of  powers. 
Furthermore,  the  system  of  legislative  choice  usually 
means  nomination  by  a  party  caucus  and  often  a  parcel- 
ing out  of  judicial  positions  among  the  political  divisions  of 
the  state  with  reference  to  geographical  considerations 
rather  than  fitness  for  the  judicial  office.^  In  short,  as  a 
great  jurist  has  pointed  out,  it  presents  "too  many  occa- 
sions and  too  many  temptations  for  intrigue,  party  prejudice, 
and  local  interest  to  secure  a  judiciary  best  calculated 
to  promote  the  ends  of  justice."^  Choice  by  the  legisla- 
ture was  a  favorite  method  of  selection  in  the  American 
states  for  a  time  after  the  Revolution,  a  circumstance 
due  to  the  prevailing  jealousy  of  the  executive  on  the 
one  hand  and  the  distrust  of  popular  election  on  the  other. 
This  system,  however,  has  been  abandoned  in  all  the 
American  states  but  four,^  and  is  not  followed  in  any  Euro- 
judicature,  as  it  were,  something  exterior  to  the  state."  "  Reflections  on  the  French 
Revolution." 

'  Cf.  Baldwin,  "The  American  Judiciary,"  p.  312. 

^  Kent,  "  Commentaries,"  vol.  I,  p.  292. 

'  Rhode  Island,  Vermont,  South  Carolina,  and  Virginia.     In  Connecticut  the 
legislature  elects  upon  the  nomination  of  the  governor. 


574  THE   JUDICIARY 

pean  country  except  Switzerland,  where  the  judges  of  the 
federal  tribunal  are  chosen  by  the  legislative  assembly  of 
the  Confederation. 
Popular  The  method  of  popular  election  is  now  the  rule  in  the 

of  tiie  great  majority  of  the  states  of  the  American  federal  union/ 
Judges  though  outside  of  the  United  States  it  has  made  almost 
no  headway.  In  Europe  and  in  the  English  self-govern- 
ing colonies  it  is  unknown,  except  occasionally  for  the 
election  of  inferior  magistrates,  and  even  in  the  republics 
of  Latin  America,  where  democratic  government  has  made 
great  advance,  popular  election  of  the  judges  has  found 
little  acceptance.^  The  chief  disadvantage  of  popular 
election  is  that  it  is  apt  to  secure  a  judiciary  at  once  weak 
and  lacking  in  independence.'  Where  such  a  method 
prevails  the  election  is  usually  made  from  candidates  who 
have  been  nominated  by  party  conventions  or  by  primary 
elections  following  campaigns  through  the  filth  and  mire 
of  which  the  judicial  ermine  must  often  be  dragged.  The 
qualities  which  distinguish  an  able  and  fearless  judge  are 
not  usually  those  of  the  successful  politician;  and  hence 
judges  frequently  make  poor  candidates,  and  are  sometimes 
defeated  by  men  of  less  fitness,  who  are  better  gifted  with 
the  arts  of  winning  public  favor.  Moreover,  the  masses  of 
voters  do  not  always  possess  the  discrimination  and  under- 
standing necessary  to  appreciate  the  soundness  of  judicial 
opinions,  and  hence  the  judge  who  renders  a  decision  that 
does  not  meet  the  approval  of  public  opinion,  however  sound 
it  may  be  in  law,  can  be  reelected  only  with  difficulty  if 
at  all/     The  judicial  history  of  the  American  states,  where 

*  Thirty-three  in  all. 

'  In  Mexico  the  judges  of  the  federal  supreme  court  are,  however,  chosen  by  a 
process  of  indirect  election.  '  Cf.  "The  Federalist,"  No.  78. 

*  "  The  just  and  vigorous  investigation  and  punishment  of  every  species  of  fraud 
and  violence  and  the  exercise  of  the  power  of  compelling  every  man  to  the  punctual 
performance  of  his  contracts,"  observed  Chancellor  Kent,  "are  grave  duties  not  of 
the  most  popular  character,  and  hence  not  always  calculated  to  command  the  calm 
approval  of  the  popular  masses."     "  Commentaries,"  vol.  I,  p.  292  (12th  ed.). 


INDEPENDENCE   OF  THE   JUDICIARY  575 

popularly  elected  judiciaries  are  most  common,  abounds  in 
instances  of  the  defeat  of  able  and  distinguished  jurists 
because  of  unpopular  judicial  opinions  rendered  by  them. 
Altogether  it  constitutes  a  chapter  of  history  which  is 
not  creditable  to  American  democracy  and  forms  a  strong 
indictment  against  the  system  of  popular  election.^  More- 
over, the  necessity  of  submitting  themselves  and  their  legal 
opinions  at  frequent  intervals  to  the  judgment  of  the  masses 
creates  in  the  judges  a  strong  temptation  to  shape  their 
decisions  and  indeed  their  whole  judicial  conduct  in  such 
a  way  as  to  meet  the  approval  of  those  to  whom  they  must 
look  for  reelection.  No  judge  should  be  exposed  to  the 
necessity  of  having  to  curry  popular  favor  in  order  to 
retain  his  office.  As  Chancellor  Kent  has  well  observed,  the 
fittest  men  are  likely  to  have  "too  much  reservedness  of 
manners  and  severity  of  morals  to  secure  an  election  rest- 
ing on  universal  suffrage."  ^  It  lowers  the  character  of 
the  judiciary,  tends  to  make  a  politician  of  the  judge,  and 
subjects  the  judicial  mind  to  a  strain  which  it  is  not 
always  able  to  resist.^ 

The  experience  of  the  past  and  the  testimony  of  the  Executive 
majority  of  political  writers  concur  in  holding  the  method  m^n?°*" 
of  executive  appointment  to  be  the  best  system  yet  de- 
vised for  selecting  the  judiciary.  The  peculiar  qualities 
adapted  to  the  judicial  station  can  be  better  discerned  by 
a  wise  executive  than  by  the  masses  of  uninstructed  voters, 
who,  as  has  been  said,  are  likely  to  be  influenced  by  per- 

*  For  some  historical  examples  of  the  compulsory  retirement  of  able  and  dis- 
tinguished judges  because  of  the  unpopularity  of  their  judicial  opinions,  see  Baldwin, 
"American  Judiciary,"  pp.  312-321. 

*  "  Commentaries,"  vol.  I,  p.  292. 

'  See  further  on  the  popular  election  of  judges,  Esmein,  "Droit  constitutionnel," 
pp.  351  ff.,  and  Mill,  "  Representative  Government,"  pp.  253  ff.  For  a  strong  argu- 
ment against  a  popularly  elected  judiciary  see  also  Laveleye,  "Le  Gouvernement 
dans  la  Democratic,"  vol.  I,  pp.  329-333.  "La  plus  mauvaise  institution"  says 
Laveleye,  "qu'ojt  recontre  aujourd'hui  dans  la  plupart  des  Etats-Unis,  et  peut-etre  la 
seule  qui  soit  foncibrement  mauvaise,  est  la  magistrature  elite.  Les  consequences 
tt'en  sont  pas  partoui  esalement  regrettables.     Mais  elks  sont  parfois  detestables. 


576  THE   JUDICIARY 

sonal  qualities  which  are  often  lacking  in  great  judges. 
Besides,  the  method  of  executive  appointment  removes  the 
office,  to  a  large  extent,  from  the  low  level  of  party  politics, 
destroys  the  temptation  of  the  judges  to  popular  sub- 
serviency, and  thus  adds  to  the  independence  and  dignity 
of  the  judiciary.  This  method  of  selection  has  commended 
itself  to  the  vast  majority  of  countries  outside  of  the  United 
States,  and  even  here  it  is  the  method  in  force  for  the  ap- 
pointment of  all  federal  judges  and  of  the  higher  judges  of 
a  number  of  the  states.^ 
Tenure  In  regard  to  the  tenure  of  the  judges  we  find  the  same 

Judges  variety  of  opinion  and  practice.  Most  of  the  original  thir- 
teen states  of  America,  in  their  first  constitutions,  estab- 
lished a  good  behavior  tenure  for  their  higher  judges,  and 
this  rule  was  adopted  by  the  national  constitution  for  the 
federal  judges.  The  substitution  of  short  tenures,  how- 
ever, became  a  part  of  the  democratic  movement  in  the 
early  nineteenth  century,  and  in  the  course  of  time  all 
the  American  states  except  three  abandoned  the  good 
behavior  principle  for  limited  terms. ^  These  terms  range 
from  two  years,  which  is  the  rule  in  Vermont,  to  twenty-one 
years,  which  is  the  limit  in  Pennsylvania,  the  average  be- 
ing from  six  to  nine  years.  In  Europe,  Switzerland  is  the 
only  country  in  which  the  tenure  of  the  higher  justices  is 
limited  to  a  definite  term,  the  period  being  six  years  for  the 
members  of  the  federal  tribunal.  In  Latin  America, 
Mexico  is  the  only  important  republic  in  which  the  good 
behavior  tenure  is  lacking,  the  term  of  the  supreme  judi- 
cature in  that  country  being  six  years.  Outside  of  the 
United  States,  therefore,  the  good  behavior  principle  is 
practically  universal.  "The  standard  of  good  behavior 
for  the  continuance  in  office  of  the  judicial  magistracy," 

*  For  example,  Massachusetts,  Connecticut,  Maine,  New  Hampshire,  Delaware, 
Mississippi,  and  New  Jersey. 

^  The  exceptions  are  Massachusetts,  New  Hampshire,  and  Rhode  Island,  where 
the  judges  are  appointed  for  good  behavior. 


INDEPENDENCE   OF    THE    JUDICIARY  577 

said  Hamilton,  "is  certainly  one  of  the  most  valuable 
of  the  modern  improvements  in  the  practice  of  govern- 
ment. In  a  monarchy,  it  is  an  excellent  barrier  to  the  des- 
potism of  the  prince;  in  a  republic,  it  is  a  no  less  excellent 
barrier  to  the  encroachments  and  oppressions  of  the 
representative  body.  And  it  is  the  best  expedient  which 
can  be  devised  in  any  government,  to  secure  a  steady, 
upright,  and  impartial  administration  of  the  laws."  ^ 
It  requires  but  little  reflection  to  see,  as  Hamilton  pointed 
out,  that  the  judiciary  from  the  very  nature  of  its  func- 
tions must  necessarily  be  the  least  dangerous  to  the  rights 
of  the  other  departments,  because  it  possesses  the  least 
capacity  to  annoy  or  injure  them.  "The  executive,"  he 
remarked,  "not  only  dispenses  the  honors,  but  holds  the 
sword  of  the  community.  The  legislature  not  only  com- 
mands the  purse,  but  prescribes  the  rules  by  which  the 
duties  and  rights  of  every  citizen  are  to  be  regulated. 
The  judiciary,  on  the  contrary,  has  no  influence  over  either 
the  sword  or  the  purse;  no  direction  either  of  the  strength 
or  of  the  wealth  of  the  society;  and  can  take  no  active 
resolution  whatever.  It  may  truly  be  said  to  have  neither 
force  nor  will,  but  merely  judgment;  and  must  ultimately 
depend  upon  the  aid  of  the  executive  arm  even  for  the 
efficacy  of  its  judgments."  ^  Finally,  as  Hamilton  showed, 
a  good  behavior  tenure  is  necessary  to  secure  the  experience 
and  knowledge  of  judicial  precedent  which  constitutes  one 
of  the  most  important  sources  of  strength  in  the  judicial 
office.  In  the  course  of  a  long  judicial  career  marked  by 
laborious  study  and  constant  application,  the  judge  ac- 
quires a  familiarity  with  the  precedents  which  obviously 
cannot  be  gained  by  one  whose  tenure  is  limited  to  a  brief 
period.     Hence  it  is  that  "there  can  be  but  few  men  in  the 

»  "The  Federalist,"  No.  78. 

*  Ibid.     Compare  Montesquieu,  who  observed  that  "of  the  three  powers  the 
judiciary  is  in  some  measure  next  to  nothing."      "  Esprit  des  Lois,"  bk.  XI,  ch.  6. 
Cf.  also  Story,  "Commentaries,"  sees.  1600-1606. 
POL.  SCI.  —  37 


578  THE   JUDICIARY 

society  who  will  have  sufficient  skill  in  the  laws  to  qualify 
them  for  the  station  of  judges;  and,  making  the  proper  de- 
ductions for  the  ordinary  depravity  of  human  nature,  the 
number  must  be  still  smaller  of  those  who  unite  the  requi- 
site integrity  with  the  requisite  knowledge." 
Removal  In  all  states,  however,  provision  must  be  made  for  the 
0  Ju  ges  YeTnoYcd  of  corrupt  and  inefficient  magistrates;  for  the  con- 
tinuance in  office,  and  especially  for  life,  of  an  incapable  or 
corrupt  judge  would  be  intolerable.  The  English  judges  in 
earlier  times  held  their  offices  at  the  royal  pleasure,  but  this 
proved  to  be  a  dangerous  power  to  vest  in  the  executive, 
because  it  made  the  judiciary  subservient  to  the  crown, 
especially  in  state  trials,  and  gave  the  king  a  control  over 
the  administration  of  justice  at  once  dangerous  to  private 
rights  and  subversive  of  the  liberties  of  the  people.^  In  the 
time  of  Lord  Coke  the  barons  of  the  exchequer  were  given  a 
good  behavior  tenure;  and  during  the  reign  of  Charles  II  the 
same  tenure  was  created  for  the  common  law  judges,  though 
the  crown  retained  until  after  the  revolution  of  1688  the 
right  to  prescribe  what  tenure  it  might  allow.  Finally, 
by  an  act  of  Parliament  passed  in  the  thirteenth  year  of 
the  reign  of  William  III,  the  commissions  of  the  judges 
were  made  to  run  during  good  behavior,  and  they  were 
forbidden  to  be  removed  by  the  crown  except  upon  an 
address  of  both  houses  of  Parliament.  In  the  course  of 
time  the  same  principle  was  adopted  in  many  of  the  con- 
tinental states  of  Europe. 

In  the  United  States  the  customary  mode  of  removal 
is  by  impeachment,  that  is,  through  the  preferment  of 
charges  by  one  chamber  of  the  legislature,  usually  the  lower, 
and  trial  by  the  other.  The  chief  objection  to  this  pro- 
cedure is  the  danger  that  the  legislature  may  employ 
its  power  of  removal  for  party  purposes,  but  this  danger 
is  largely  eliminated  by  the  provision  that  an  extraordinary 

•  See  on  this  point  De  Lolme,  "Constitutional  History  of  England,"  bk.  II,  ch. 
16;  Kent,  vol.  I,  pp.  293-294;  Story,  vol.  II,  sec.  1608, 


INDEPENDENCE    OF   THE    JUDICIARY  579 

majority  of  the  trial  chamber  shall  be  required  to  remove.* 
In  the  German  Empire  and  certain  other  European  states 
the  possibility  of  this  danger  is  eliminated  by  vesting 
the  power  of  removal  or  suspension  in  the  court  of  which 
the  judge  is  a  member,  sitting  as  a  disciplinary  tribunal,^ 
and  then  only  after  a  regular  trial  for  reasons  expressly 
provided  in  the  laws.  In  Italy  the  independence  of  the 
judiciary  is  weakened  by  the  power  of  the  executive  to 
assign  the  judges  to  their  stations.  Thus  a  magistrate 
who  refuses  to  show  the  desired  subserviency  to  the  ex- 
ecutive may  be  "reassigned  in  the  interest  of  the  service" 
and  sent  to  a  less  desirable  judicial  station  in  another  part 
of  the  country.  Frequent  complaints  have  been  made  of 
the  arbitrary  exercise  of  this  power.^  Such  a  practice  is  pro- 
hibited in  Germany  by  a  constitutional  provision  to  the 
effect  that  no  judge  may  be  transferred  without  his  con- 
sent to  another  district  except  as  a  punishment  inflicted 

*  Some  of  the  American  state  constitutions  which  now  provide  or  formerly  pro- 
vided for  a  good  behavior  tenure,  fixed  the  attainment  of  a  certain  age  as  evidence  of 
inability,  and  required  all  incumbents  of  the  judicial  office  to  retire  upon  reaching 
that  age.  Thus  in  New  York,  under  an  early  constitution,  the  age  limit  was  fixed 
at  sixty,  in  consequence  of  which  the  state  lost  from  its  service  Chancellor  Kent, 
one  of  the  greatest  jurists  that  ever  adorned  the  bench  of  any  state  —  a  man,  says 
Story,  who  was  at  once  the  compeer  of  Hardwick  and  Mansfield.  A  similar  re- 
quirement in  England  would  have  deprived  the  English  bench  of  the  services  of 
Lord  Mansfield  for  twenty  years ;  and  in  the  United  States  it  would  have  compelled 
the  retirement  of  Justices  Marshall,  Taney,  Field,  and  many  other  of  the  great  men 
who  have  sat  on  the  federal  supreme  bench,  at  a  time  when  they  were  still  in  the 
full  possession  of  their  strength.  The  value  of  such  provisions,  says  Story  (vol.  II, 
sec.  1626),  has  never  been  satisfactorily  established  by  any  state.  Speaking  of  the 
provision  in  the  New  York  state  constitution  referred  to  above,  Hamilton  remarked : 
"  I  believe  there  are  few  at  present  who  do  not  disapprove  of  this  provision.  ...  In 
a  republic,  where  fortunes  are  not  affluent,  and  pensions  are  not  expedient,  the  dis- 
mission of  men  from  stations  in  which  they  have  served  their  country  long  and  use- 
fully, on  which  they  depend  for  subsistence,  and  from  which  it  will  be  too  late  to 
resort  to  any  other  occupation  for  a  livelihood,  ought  to  have  some  better  apology 
to  humanity,  than  is  to  be  found  in  the  imaginary  danger  of  a  superannuated 
bench."     "The  Federalist"  (Dawson's  ed.),  p.  551. 

*  See  two  articles  by  the  writer  entitled,  "The  German  Judiciary,"  in  the  "Polit- 
ical Science  Quarterly,"  vols.  22  and  23. 

'  Cf.  Lowell,  "  Government  and  Parties  in  Continental  Europe,"  vol.  I,  p.  177. 


58o 


THE   JUDICIARY 


Compen- 
sation of 
the  Judges 


by  a  disciplinary  court,  or  in  consequence  of  the  reorgani- 
zation of  the  judicial  system,  in  which  case  the  judge  so 
transferred  must  be  assigned  to  another  station  of  equal 
rank  and  pay,  and  with  an  allowance  sufficient  to  cover 
the  cost  of  changing  his  residence. 

Next  to  permanency  of  tenure  nothing  contributes  more 
to  the  independence  of  the  judiciary  than  a  fixed  and  ade- 
quate provision  for  the  support  of  the  judges.  In  con- 
sidering the  necessity  for  such  provision,  Hamilton  aptly 
remarked  that  "in  the  general  course  of  human  nature  a 
power  over  a  man's  subsistence  amounts  to  a  power  over 
his  will."  ^  "  To  give  the  judges  the  courage  and  the  firm- 
ness to  do  their  duty  fearlessly,"  said  Chancellor  Kent, 
"they  ought  to  be  confident  of  the  security  of  their  sala- 
ries and  station."  ^  This  is  the  opinion  of  practically  all 
political  writers  of  note,  and  it  has  become  the  practice  of 
the  great  majority  of  states.  In  England,  by  a  statute 
passed  in  the  reign  of  George  III,  the  full  salaries  of  the 
judges  were  guaranteed  during  the  continuance  of  their 
commissions;  and  this  principle  was  introduced  into  the 
constitutions  of  a  number  of  the  American  states.  The 
constitution  of  the  United  States,  in  providing  that  the 
salaries  of  the  federal  judges  should  not  be  diminished 
during  their  time  of  office  (without,  however,  forbidding 
their  increase)  was  an  improvement  over  all  existing 
constitutional  arrangements  in  this  respect. 


The 

Collegial 

Principle 


II.    JUDICIAL   ORGANIZATION 

The  organization  of  the  judiciary  differs  essentially  from 
either  that  of  the  executive  or  the  legislative  departments. 

»  "The  Federalist,"  No.  79. 

'"Commentaries,"  vol.  I,  p.  294;  Story,  vol.  II,  sees.  1629-1633;  Tucker's 
Blackstone,  vol.  I,  App.  360.  "The  provision  for  the  permanent  support  of  the 
judges,"  continues  Kent,  "is  well  calculated,  in  addition  to  the  tenure  of  their  office, 
to  give  them  the  requisite  independence.  It  tends  also  to  secure  a  succession  of 
learned  men  on  the  bench,  who  in  consequence  of  a  certain  undiminished  support. 


JUDICIAL   ORGANIZATION  581 

The  supreme  executive  power  practically  everywhere  is 
vested  in  the  hands  of  a  single  person,  while  the  legislative 
power  is  intrusted  to  a  more  or  less  numerous  assembly. 
The  judicial  power,  on  the  other  hand,  is  neither  vested  in 
a  single  person  nor  in  an  assembly,  but  in  a  number  of 
magistrates,  sometimes  sitting  singly  and  sometimes  in 
bodies,  constituting  tribunals  or  benches,  usually  arranged 
in  a  hierarchical  series  one  above  the  other.  In  some 
countries,  of  which  the  German  Empire  is  a  notable 
example,  all  the  courts  from  the  lowest  to  the  highest  are 
collegial  in  organization,  that  is,  each  is  held  by  a  bench 
of  judges  rather  than  by  a  single  magistrate.*  In  other 
countries  only  the  highest  courts,  usually  those  having 
appellate  jurisdiction,  are  organized  on  the  collegial  prin- 
ciple. Thus  in  the  judicial  organization  of  the  United 
States  the  district  courts  are  held  by  a  single  judge,  and 
the  circuit  courts  may  be,  and  frequently  are,  held  by  one 
judge.  Among  the  individual  states,  generally,  all  the  infe- 
rior courts  are  held  by  single  judges,  leaving  only  the  highest 
courts  to  be  constituted  on  the  collegial  principle. 

Usually  standing  at  the  top  of  the  hierarchy  is  a  supreme 
court  which  has  jurisdiction  over  cases  brought  up  from  the 
lower  courts  by  way  of  appeal  or  upon  writs  of  error,  and 
whose  decision  is  final  and  conclusive.  This  court  may  be 
a  tribunal  of  review,  that  is,  with  power  to  revise  the 
decisions  of  the  lower  courts;  or  it  may  be  simply  a  court 
of  cassation,  with  power  only  to  "break"  or  quash  the 
judgments  of  the  lower  courts;  or  it  may  be  both.  Some- 
times instead  of  a  single  court  of  final  authority  there  are 
several  with  equal  and  coordinate  jurisdiction.  This  is  the 
case,  for  example,  in  Italy,  where  there  are  five  independ- 

are  enabled  and  induced  to  quit  the  lucrative  pursuits  of  private  business  for  the 
duties  of  that  important  station." 

•  An  exception  to  this  statement  is  found  in  the  organization  of  the  German 
Amtsgericht,  the  lowest  court  in  the  judicial  system,  it  being  held  by  a  single 
magistrate. 


582 


THE   JUDICIARY 


ent  supreme  courts  of  cassation,  each  having  final  and  su- 
preme authority  within  its  own  territorial  jurisdiction. 
Between  these  courts  the  ordinary  higher  civil  jurisdiction 
of  the  kingdom  is  divided;  no  appeal  lies  from  one  to 
another,  and  none  of  the  five  feels  bound  to  accept  the 
decisions  of  the  others  or  follow  them  as  precedents.  This 
decentralization  of  the  judicial  system  has  proved  to  be 
a  source  of  great  weakness  in  the  governmental  system  of 
Italy/  On  the  continent  of  Europe  the  division  of  the 
judicial  tribunals  into  chambers  or  senates  for  convenience 
of  administration  is  a  common  practice.  Thus  in  the 
German  Empire  all  the  courts  except  the  lowest  (the 
Amtsgericht)  are  divided  into  civil  and  criminal  chambers; 
and  the  imperial  court  (the  Reichsgericht)  is  similarly 
divided  into  criminal  and  civil  "senates,"  there  being  four 
of  the  former  and  six  of  the  latter.  Likewise,  the  high- 
est court  of  France,  the  tribunal  of  cassation,  is  divided 
into  sections,  three  in  number.  In  order  to  avoid  con- 
flicting decisions  where  the  court  with  final  authority  is 
divided  into  chambers  or  sections,  sessions  in  plenum  are 
sometimes  necessary.  In  the  United  States  the  practice 
of  dividing  the  courts  into  sections  or  chambers  has  rarely 
been  followed. 

In  states  having  the  federal  system  of  government  there 
are  usually  two  separate  and  distinct  series  of  judicial 
bodies,  one  to  exercise  the  national  or  general  jurisdiction 
of  the  whole  union,  the  other  the  local  jurisdiction  of  the 
component  states. 

This  is  not  necessarily  so,  however,  as  the  organiza- 
tion of  the  German  judicial  system  clearly  shows.  In- 
stead of  two  separate  and  distinct  systems,  one  to  exercise 
the  judicial  power  of  the  empire  and  the  other  that 
of  each  individual  state,  there  is  a  single  uniform  sys- 
tem for  the  empire  and  the  states  alike,  all  being  organ- 
ized under  imperial  law   and    exercising   their   functions 

*  Lowell,  "Government  and  Parties  in  Continental  Europe,  "  vol.  I,  p.  170. 


JUDICIAL   ORGANIZATION  583 

in  accordance  with  an  imperial  code  of  procedure.  Thus 
the  entire  judicial  system  of  the  country,  from  the  bottom 
to  the  top,  rests  upon  the  same  basis;  the  competency  and 
procedure  of  all  the  courts  are  determined  by  imperial 
law,  and  they  are  held  by  judges  whose  qualifications  and 
tenure  are  prescribed  by  the  same  authority.  There  is  no 
division  of  jurisdiction  between  the  empire  and  the  states; 
in  short,  the  federal  principle  has  no  place  in  the  judicial 
organization  of  that  country.  Nevertheless,  with  the  ex- 
ception of  the  Reichsgericht,  the  courts  are  all  regarded  as 
state  tribunals  rather  than  as  imperial  courts,  the  judges 
being  appointed  by  the  state  governments  and  their  com- 
pensation being  determined  and  provided  by  the  same 
authorities.  Moreover,  they  exercise  their  jurisdiction 
in  the  name  of  the  local  governments  and  are  subject  to 
the  oversight  of  the  states  in  which  they  are  situated.  As 
there  is  one  uniform  judicial  organization  for  all  the  Ger- 
man states,  so  there  are  common  imperial  codes  of  civil  and 
criminal  law  and  of  procedure.  Thus  neither  diversity  in 
judicial  organization  nor  of  law  exists  in  Germany,  though 
the  state  is  federal  in  its  organization. 

In  the  United  States,  on  the  contrary,  there  are  as  many  in  the 
systems  of  judicial  organization  and  of  law  and  procedure  g^^^ 
as  there  are  states.  Each  individual  commonwealth  or- 
ganizes its  own  judiciary  and  frames  its  own  codes  of  law 
and  procedure,  according  to  its  own  notions  and  its  own 
conception  of  its  local  needs  and  conditions.  Neverthe- 
less, there  is  in  reality  far  more  of  resemblance  than  of 
diversity,  owing  to  the  common  basis  which  is  afforded  by 
the  common  law,  upon  which  the  legal  system  of  each  of 
the  states  rests.  There  are,  of  course,  variations,  but  in 
essentials  there  is  remarkable  similarity  and  uniformity. 
Only  in  a  limited  sense  are  the  courts  of  one  state  regarded 
by  those  of  another  as  foreign.  The  constitution  of  the 
United  States  requires  that  the  courts  of  each  state  shall 
give  full  faith  and  credit  to  the  records  and  judicial  pro- 


those  of 
the  States 


584  THE   JUDICIARY 

ceedingsof  the  other  states;  and  the  spirit  of  judicial  comity 
—  the  deference  paid  by  the  courts  of  one  state  to  the  deci- 
sions of  the  others  —  which  characterizes  interstate  judi- 
cial relations  constitutes  a  powerful  unifying  force.  This 
rule  of  comity,  together  with  the  full  faith  and  credit  pro- 
vision, makes  possible  the  enforcement  in  one  state  of 
rights  acquired  in  others  and  likewise  contributes  to  the 
prevention  by  one  of  acts  which  would  infringe  on  pro- 
hibitions created  by  others.^ 
Relation  Moreover,  there  are  many  points  of  connection  between 
Srcourts  *^^  national  and  state  judiciaries.  Thus  every  judicial 
of  the  officer  of  a  state  is  required  by  the  constitution  of  the 
states  and  United  States  to  bind  himself  by  oath  to  support  its  pro- 
visions and  this  obligation  makes  it  incumbent  upon  him 
in  his  judicial  capacity  to  respect  the  laws  and  treaties 
of  the  United  States  and  in  case  of  conflict  between  them 
and  the  laws  of  the  state  which  he  is  commissioned  to 
enforce,  to  uphold  and  give  precedence  to  the  former. 
Both  the  national  and  state  courts  are  in  a  sense  comple- 
mentary parts  of  the  same  governmental  system.  Rights 
arising  under  the  national  constitution  and  laws  may 
ordinarily  be  enforced  by  the  state  courts,  though  the 
federal  government  cannot  compel  them  against  their  will 
to  exercise  the  jurisdiction  and  discharge  the  duties  which 
properly  belong  to  the  national  courts.  There  are  many 
cases  which  can  be  brought  at  the  option  of  the  plaintiff  in 
either  a  federal  or  a  state  court,  but  in  most  instances  if 
brought  in  the  latter  the  defendant  has  the  right  of  remov- 
ing it  to  a  federal  court  if  he  chooses.^  Furthermore,  in  any 
case  tried  in  a  state  court,  if  the  decision  turns  on  a  claim  of 

*  Cf.  Baldwin,  "The  American  Judiciary,"  p.  182. 

•  "Such  is  the  state  of  the  law  at  this  time,"  says  Judge  Cooley,  "that  many  cases 
within  the  reach  of  the  Judicial  power  of  the  United  States  are  left  wholly  to  the 
state  courts,  while  in  many  others  the  state  courts  are  permitted  to  exercise  a  juris- 
diction concurrent  with  that  of  the  federal  courts,  but  with  a  final  review  of  their 
judgments  on  questions  of  federal  law  in  the  United  States  Supreme  Court."  "Prin- 
ciples of  Constitutional  Law,"  p.  124. 


ADMINISTRATIVE   COURTS  585 

right  arising  under  the  constitution  or  laws  of  the  Uiiited 
States  and  if  the  decision  is  adverse  to  the  claim,  the  losing 
party  may  appeal  therefrom  and  have  the  decision  of  the 
state  court  reviewed  by  the  highest  federal  court  in  the 
land/  This  is  necessary,  otherwise  the  constitution  and 
laws  of  the  United  States  would  not  be  what  they  are 
declared  to  be,  namely,  the  supreme  law  of  the  land. 

III.    ADMINISTRATIVE   COURTS   AND   ADMINISTRATIVE 
JURISDICTION 

On  the  continent  of  Europe,  particularly  in  France  and  Adminis- 
Prussia,  a  special  class  of  tribunals,  separate  and  distinct  contro- 
from  the  ordinary  courts  of   justice   and  constituted  on  versies 
different  principles,   has  been  provided,   for  the  determi- 
nation of  administrative  controversies,   that  is,   disputes 
between   private   individuals   and   the   public   authorities 
as  well  as  disputes  among  administrative  officials  them- 
selves.^    In    general,  where    such    a    system    prevails,  so- 
called  administrative  controversies  are  not  allowed  to  be 
determined    by    the    regular    judicial    courts.     The    idea 
originated  in  France  at  the  time  of  the  Revolution,  and 
may  be  said  to  have  resulted  from  the  extreme  concep- 
tion of  the  doctrine  of  the  separation  of  powers,  then  held 
by  the  French.     Montesquieu's  famous  theory  concerning 

*  "The  legislation  of  Congress,"  observes  Judge  Cooley,  "has  left  the  parties  at 
liberty,  with  few  exceptions,  to  bring  their  suits  in  the  state  courts,  irrespective  of  the 
questions  involved,  but  has  made  provision  for  protecting  the  federal  authority  by  a 
transfer  to  the  federal  courts,  either  before  or  after  judgment,  of  the  cases  to  which  the 
federal  judicial  power  extends."  "Principles  of  Constitutional  Law,"  p.  1 25.  On  the 
relation  of  the  state  to  the  federal  courts,  see  also  Baldwin,  "The  American  Judi- 
ciary," ch.  10, 

^  On  the  nature  of  the  administrative  jurisdiction  see  St.  Girons,  "La  Separa- 
tion des  Pouvoirs,"  bk.  II,  ch.  3;  Goodnow,  "Comparative  Administrative  Law," 
vol.  II,  pp.  190-198;  Ashley,  "Central  and  Local  Government,"  ch.  8;  Berthclemy, 
"Traits  el^mentaire  de  Droit  administratif,"  bk.  Ill,  ch.  i;  Aucoc,  "Droit  ad- 
ministratif,"  vol.  I,  bk.  Ill,  ch.  i;  Pradier-Fodere,  "Precis  de  Droit  administratif," 
pt.  Ill,  ch.  i;  and  Meyer,  "Deutsches  Verwaltungsrecht,"  pt.  I,  sect.  9. 


586 


THE   JUDICIARY 


Argument 
in  Favor 
of  Admin- 
istrative 
Courts 


the  necessity  of  intrusting  the  legislative,  executive,  and 
judicial  powers  to  separate  and  distinct  organs  was  em- 
bodied in  extreme  form  in  the  "declaration  of  rights  of 
man  and  the  citizen"  of  1791  by  the  Constituent  Assembly, 
which  asserted  that  if  the  judiciary  were  permitted  to 
meddle  with  administrative  officials  in  the  discharge  of  their 
duties  the  constitution  would  be  violated  and  the  opera- 
tions of  the  government  hindered.^  The  administrative 
authorities  were  therefore  made  completely  independent 
of  judicial  control,  and  the  judges  were  interdicted  under 
pain  of  forfeiting  their  offices  from  interfering  in  any 
manner  with  the  acts  of  the  administration.^  This  prin- 
ciple was  in  turn  introduced  into  other  continental  states, 
particularly  into  Prussia  and  Italy,  and  has  been  retained 
by  them  to  the  present  day. 

The  chief  advantage  claimed  for  the  system  is  that  the 
subjection  of  the  public  authorities  to  the  continual  control 
and  interference  of  the  judicial  courts  is  detrimental  to 
prompt  and  efficient  administration.  Administrative  con- 
troversies are  somewhat  peculiar  in  their  nature  and  in- 
volve questions  which  for  proper  consideration  require 
a  special  and  technical  knowledge  not  ordinarily  possessed 
by  judges  whose  training  and  experience  have  been  con- 
fined to  the  field  of  private  law,  and  whose  education  has 
been  academic  rather  than  practical.  Such  judges  are 
likely  to  have  exaggerated  notions  of  the  rights  of  private 
individuals,  as  against  those  of  the  public;  they  are 
inclined  to  a  natural  timidity  in  deciding  issues  between 
individuals  and  the  government  adversely  to  the  claims  of 
the  individual;  and  with  their  disposition  to  adhere  strictly 
to  legal  rules  and  traditions  they  sometimes  unnecessarily 

•  Art  XVI. 

'  "There  has  always  existed,"  says  a  French  writer,  "  a  school  of  French  publicists 
who  have  objected  to  referring  administrative  matters  to  bodies  which  have  anything 
whatever  of  a  judicial  character  and  who  have  maintained  that  where  the  rights  of  the 
state  are  concerned  the  administration  as  representing  the  state  should  be  the  sole 
judge  in  its  own  cause."     Vivien,  "Etudes  administratives,"  vol.  I,  p.  129, 


ADMINISTRATIVE   COURTS  587 

hamper   and   obstruct   the   legitimate   operations   of   the 
government/ 

The  history  of  administration  in  the  United  States 
and  England  abounds  in  illustrations  of  the  truth  of 
these  observations.  Only  men  who  have  been  trained 
in  the  study  of  administrative  law  and  who  have  had 
practical  experience  in  the  actual  work  of  public  admin- 
istration, it  is  said,  are  capable  of  deciding  wisely  contro- 
versies involving  a  technical  knowledge  of  administrative 
questions.  Judges  without  such  special  knowledge  or  ex- 
perience are  apt  to  apply  to  the  interpretation  of  con- 
troversies between  private  individuals  and  the  public 
authorities  the  pure  principles  of  private  law,  rather  than 
those  of  the  public  law.  This  sometimes  leads  to  results 
that  are  wholly  inconsistent  with  sound  public  policy  and 
efficient  administration,  for  the  rules  of  law  governing  the 
organization  and  functions  of  the  administration  are  quite 
different  from  those  governing  the  relations  of  private  in- 
dividuals, since  the  purpose  of  the  former  is  the  public 
welfare  rather  than  private  interests.  When  the  govern- 
ment is  a  party  to  a  dispute  it  cannot  be  treated  like  a  pri- 
vate litigant  without  seriously  injuring  at  times  its  efficiency 
and  impeding  its  operations.  The  law  of  contract  and 
tort,  for  example,  which  plays  so  important  a  part  in  the 
regulation  of  the  conduct  of  private  individuals  occupies 
a  very  unimportant  place  in  the  law  governing  the  rela- 
tions of  the  public  authorities.  The  administration  of 
two  such  widely  different  bodies  of  rules  requires,  there- 
fore, different  habits  of  mind,  traditions,  and  training.^ 
It  is  also  to  be  remarked  that  the  individual  under  the  con- 

'  Compare  Lowell,  "Government  of  England,"  vol.  II,  p.  502. 

*  Cf.  Goodnow^,  op.  cit.,  vol.1,  p.  13;  Burgess,  "Political  Science  and  Con- 
stitutional Law,"  vol.  I,  p.  238,  where  it  is  shown  that  the  result  of  the  rigid  appli- 
cation by  the  United  States  Supreme  Court  of  the  law  of  contract  in  public  relations 
has  been  to  introduce  into  the  constitutional  law  of  the  United  States  feudal  prin- 
ciples; Aucoc,  op.  cit.,  vol.  I,  bk.  Ill,  ch.  i;  Berthelemy,  op.  cit.,  bk.  Ill,  ch.  i. 
sec.  1 ;  and  Meyer,  op.  cit.,  pt.  I,  p.  36. 


588 


THE   JUDICIARY 


Objections 
to  Admin- 
istrative 
Courts 


tinental  system  can  often  obtain  redress  where  he  could 
not  do  so  in  America  or  England,  as,  for  example,  in  a  case 
of  neglect  or  abuse  of  power  by  an  official  who  would  not 
in  America  or  England  be  liable  in  damages.* 

The  chief  objection  that  has  been  urged  against  the 
European  method  of  relieving  the  public  authorities  from 
the  control  of  the  regular  courts  of  justice  and  intrusting 
the  determination  of  so-called  administrative  controver- 
sies to  special  tribunals,  is  that  it  destroys  to  a  large  ex- 
tent the  legal  protection  of  the  individual  against  the  acts 
of  the  administrative  authorities."  The  legal  remedies 
which  are  allowed  by  these  courts  for  the  infringement  of 
individual  rights  by  the  authorities  are  quite  different  from, 
and,  it  is  asserted,  less  effective  than,  those  afforded  by  the 
regular  judicial  courts  in  other  cases. ^  Moreover,  their  re- 
sponsibility is  to  a  class  of  tribunals  made  up  largely  of  ad- 
ministrative officials  who,  being  a  part  of  the  government 
themselves,  are  apt  to  be  less  favorable  to  individual  rights 
than  are  judges  of  the  regular  judicial  courts.  This  may 
be  due  partly  to  their  natural  zeal  for  the  rights  of  the 
administration,  or  the  result  of  pressure  on  the  part  of  the 
government  itself.*  The  possibility  of  this  danger  is  es- 
pecially great  in  France,  where  the  administrative  judges 
do  not  enjoy  the  same  independence  as  the  other  judges, 
but  hold  their  commissions  at  the  pleasure  of  the  adminis- 

*  Compare  Lowell,  "Government  of  England,"  vol.  II,  p.  501. 

^  "  If  we  take  France  as  the  type  of  a  continental  state,"  says  Dicey,  "  we  may 
assert  with  substantial  accuracy  that  officials  are  in  their  official  capacity  protected 
from  the  ordinary  law  of  the  land,  exempted  from  the  jurisdiction  of  the  ordinary 
tribunals,  and  subject  in  many  respects  only  to  official  law  administered  by 
official  bodies."     "Law  of  the  Constitution,"  p.  181. 

'Compare  on  this  point  Percy  Ashley's  "Central  and  Local  Government," 
p.  296;  and  Dicey,  "Law  of  the  Constitution,"  lect.  V. 

*  See  De  Tocqueville,  "Democracy  in  America,"  vol.  I,  pp.  107-108,  for  an 
account  of  the  protection  which  the  French  law  threw  around  the  public  officials 
for  their  acts  at  the  time  he  wrote.  On  the  organization,  powers,  and  procedure  of 
the  French  administrative  tribunals,  see  Berthelemy,  op.  cil.,  bk.  Ill,  chs.  2-4;  on 
that  of  the  German  administrative  courts,  see  Meyer,  op.  cit.,  sees.  10-17,  and 
Lening,  "Deutsches  Staatsrecht  "  sees.  204-212. 


ADMINISTRATIVE   COURTS  589 

tration  and  hence  are  subject  to  its  control  and  dictation.* 
They  are  so  much  a  part  of  the  administration,  observes 
an  American  writer,  that  they  fall  into  the  department 
of  the  interior  rather  than  that  of  justice  and  may  be 
"controlled  absolutely  in  case  of  necessity."  In  France, 
therefore,  continues  the  same  writer,  there  is  one  law  for 
the  citizen  and  another  for  the  public  official,  and  thus 
the  executive  is  really  independent  of  the  judiciary,  for 
the  government  has  always  a  free  hand,  and  can  violate  the 
law  if  it  wants  to  do  so  without  having  anything  to  fear 
from  the  ordinary  courts.^  Theoretically  this  rather  harsh 
judgment  has  some  justification,  but  in  practice  the  French 
administrative  courts  have  not  shown  any  such  extraordi- 

*  Speaking  of  the  French  administrative  tribunals,  Dicey  remarks  that  "all  of  them 
from  the  council  of  the  prefecture  up  to  the  council  of  state  bear  the  more  or  less 
definite  impress  of  an  ofl&cial  or  governmental  character;  they  are  composed  of  ofl5- 
cial  persons,  and,  as  is  implied  by  the  very  pleas  advanced  in  defence  of  withdrawing  • 
questions  of  administrative  law  from  the  civil  courts,  look  upon  the  disputes  brought 
before  them  from  a  governmental  point  of  view,  and  decide  them  in  a  spirit  different 
from  the  feeling  which  influences  the  ordinary  judges."  The  system  of  administra- 
tive courts  is  defended  by  the  French,  he  contends,  because  in  their  opinion  it  is  only 
from  such  tribunals  that  the  interests  of  the  state  will  receive  due  consideration. 
"  OfEcial  courts  are  in  short  supported  because  they  have  an  official  bias."  "Law 
of  the  Constitution,"  2d  ed.,  pp.  191-192. 

A  more  moderate  and,  on  the  whole,  a  fairer  estimate  of  the  value  of  adminis- 
trative courts  is  that  of  Professor  Sidgwick,  who  holds  that  while  there  are  certain 
disputes,  such  as  pecuniary  claims  of  individuals  against  the  state,  which  do  not 
need  to  be  withdrawn  from  the  jurisdiction  of  the  ordinary  courts,  the  case  is  some- 
what different  in  respect  to  claims  for  damages  on  account  of  injuries  committed 
by  administrative  officials  in  alleged  violation  of  the  laws  but  acting  in  their  official 
capacity.  In  the  latter  class  of  controversies  Sidgwick  is  inclined  to  think  that  a 
more  just  decision  will  be  reached  by  a  court  composed  partly  of  persons  who  have 
had  official  experience  in  such  matters,  though  perhaps  they  ought  not  at  the  same 
time  to  be  an  actual  part  of  the  executive  branch.  Examples  of  such  cases  are  where 
an  individual  is  arrested  under  suspicion  without  a  warrant,  or  a  ship  is  detained  as 
unseaworthy  or  a  public  meeting  is  broken  up  by  an  official.  "Elements  of 
Politics,"  pp.  505-507. 

^  Lowell,  "Government  and  Parties  in  Continental  Europe,"  vol.  I,  p. 58.  Mr. 
Lowell  in  his  more  recent  work  on  the  "  Government  of  England,"  vol.  II,  p.  503, 
apparently  takes  a  more  favorable  view  of  the  French  administrative  courts,  and  he 
calls  attention  to  a  number  of  noted  cases  in  which  decisions  have  been  rendered 
against  the  government  and  in  favor  of  the  claims  of  private  individuals. 


Courts 


590  THE   JUDICIARY 

nary  subservience  to  the  government  and  but  little  disposi- 
tion to  trample  upon  individual  rights  in  the  alleged  interest 
of  public  expediency.  Indeed,  it  is  the  opinion  of  a  careful 
student  of  French  public  law  that  the  administrative  courts 
have  in  fact  shown  themselves  more  favorable  to  private 
rights  than  have  the  regular  courts  of  justice/ 
Conflict  Whatever  may  be  the  facts  as  to  the  adequacy  of  the 

remedies  which  are  afforded  by  the  administrative  courts 
for  the  protection  of  private  rights,  there  can  be  no  doubt 
that,  from  the  point  of  view  of  administrative  efficiency, 
administrative  control  has  decided  advantages  over  judicial 
control.  This  is  admitted  by  the  severest  critics  of  the 
system.^ 

Where  there  are  two  sets  of  tribunals  and  two  separate 
bodies  of  law,  disputes  must  sometimes  arise  as  to  which 
domain  a  particular  controversy  belongs  to  and  which  tri- 
bunal should  have  jurisdiction  of  it.  For  the  determi- 
nation of  such  disputes  of  jurisdiction  the  French  law 
provides  for  a  tribunal  of  conflicts,  while  in  Germany  there 
is  usually  a  similar  tribunal  known  as  a  competence-con- 
flict court.  In  both  countries  these  courts  are  composed 
of  a  certain  number  of  regular  judges  and  of  persons  in 
the  administrative  service.  In  the  German  imperial  sys- 
tem, however,  all  conflicts  of  jurisdiction  between  the  im- 
perial administrative  courts  and  the  judicial  courts  are 
settled  by  the  latter,  there  being  no  special  conflict  courts. 
In  both  countries  the  power  of  raising  the  question  of  a 
conflict  of  jurisdiction  belongs  to  the  administration  only, 

*  Goodnow,  op.  cit.,  vol.  II,  pp.  221,  230. 

'  See  Lowell,  "  Government  and  Parties,"  vol.  I,  p.  60.  For  additional  infor- 
mation on  the  subject  of  administrative  courts,  see  Batbie,  "  Traite  de  Droit 
public  et  administratif " ;  Aucoc,  "  Conferences  sur  I'Administration,"  also  his 
"Cours  de  Droit  administratif";  Ashley,  "Local  and  Central  Government," 
ch.  8;  Laferri^re,  "Traite  de  Droit  administratif,"  bk.  Ill,  ch.  6;  Pradier-Fodere, 
"Pr6cis  de  Droit  administratif";  Ducroq,  "Cours  de  Droit  administratif ";  St. 
Girons,  "La  Separation  des  Pouvoirs,"  pp.  472  ff. ;  De  Grais,  "  Handbuch  der 
Verfassung  und  Verwaltung";  Meyer,  "Deutsches  Verwaltungsrecht " ;  and  Gro- 
tefend,  "  Das  innere  Verwaltungsrecht." 


ADMINISTRATIVE   COURTS  591 

the  theory  being  that  it  alone  can  be  interested.  When 
the  administration  notifies  the  judicial  court  that  in  tak- 
ing jurisdiction  over  a  particular  controversy,  it  is  en- 
croaching upon  the  sphere  of  the  administration,  the  court 
suspends  further  proceedings,  and  the  question  of  com- 
petence is  referred  to  the  tribunal  of  conflicts  for  deter- 
mination.^ If  the  decision  is  in  favor  of  the  claim  set  up 
by  the  administration,  the  case  is  removed  to  the  adminis- 
trative courts  for  final  decision,  otherwise  it  is  decided  by 
the  judicial  court.^ 

In  England  and  America,  and  in  countries  generally  where  English 
English  legal  institutions  have  been  introduced,  the  doctrine  l^^^^ll 
of  administrative  jurisdiction,  as  it  is  known  and  practiced 
on  the  continent  of  Europe,  is  little  known.  There  ad- 
ministrative law  is  not  a  separate  branch  of  jurisprudence, 
and  specially  constituted  administrative  courts  with  juris- 
diction over  controversies  between  private  individuals  and 
public  officials  do  not  exist,  at  least  not  in  the  form  in 
which  they  are  found  on  the  continent.  Disputes  between 
the  public  authorities  and  private  citizens,  like  differences 
between  private  individuals  themselves,  are  decided  by 
the  regular  judicial  courts  and  according  to  the  ordinary 

*  Goodnow,  vol.  II,  bk.  VI,  ch.  8;  St.  Girons,  "La  Separation  des  Pouvoirs," 
pp.  528  ff.,  and  Meyer,  op.  cii.,  sees.  12-15. 

*  Dicey,  speaking  on  this  point,  remarks  that  the  "true  nature  of  administrative 
law  therefore  depends  in  France  upon  the  constitution  of  the  tribunal  des  conflits." 
"  Constituted  as  it  is  of  an  equal  number  of  administrative  officials  and  judges  of  the 
regular  courts,  it  follows  that  the  jurisdiction  of  the  civil  tribunals  is,  in  all  matters 
which  concern  officials,  determined  by  persons  who,  if  not  actually  part  of  the  execu- 
tive, are  swayed  by  official  sympathies,  and  who  are  inclined  to  consider  the  interest  of 
the  state  or  of  the  government  more  important  than  strict  regard  to  the  legal  rights  of 
individuals."  "Law  of  the  Constitution," p.  194.  Compare  alsoDe  Tocqueville, 
"Democracy  in  America,"  vol.  I,  pp.  107-108. 

In  a  recent  edition  of  his  "Law  of  the  Constitution,"  Dicey  has  restated  his  views 
on  the  droit  administratif  and  has  expressed  a  more  favorable  opinion  of  the  sys- 
tem. He  frankly  admits  that  his  earlier  views,  which  were  derived  mainly  from  the 
writings  of  De  Tocqueville,  exaggerated  the  arbitrary  character  of  the  administra- 
tive tribunals,  and  that  he  had  failed  to  perceive  the  great  change  which  the 
administrative  law  had  undergone  since  De  Tocqueville  wrote. 


592 


THE   JUDICIARY 


Adminis- 
trative 
Boards 
and  Com- 
missions 


law  of  the  land.  The  private  citizen  who  is  injured  by 
the  action  of  the  public  authorities  has  exactly  the  same 
remedies  that  he  would  have  if  the  injury  had  been 
committed  by  another  private  individual,  and  his  re- 
course is  in  the  same  courts/  In  short,  there  is  one  law 
and  one  court  for  the  citizen  and  the  public  functionary 
alike.  Public  officials  enjoy  no  special  privileges  or  im- 
munities and  are  not  exempt  from  responsibility  fof 
their  wrongful  acts,  but  must  answer  equally  with  pri- 
vate individuals  to  the  regular  courts  of  justice.  "In 
England,"  observes  Dicey,  "the  idea  of  legal  equality, 
or  of  the  universal  subjection  of  all  classes  to  one  law  ad- 
ministered by  the  ordinary  courts,  has  been  pushed  to  its 
utmost  limit.  With  us  every  official,  from  the  prime  min- 
ister down  to  a  constable  or  a  collector  of  taxes,  is  under  the 
same  responsibility  as  any  other  citizen  for  every  act  done 
without  legal  justification.  The  reports  abound  with  cases 
in  which  officials  have  been  brought  before  the  courts  and 
made  in  their  personal  capacity  liable  to  punishment  or 
to  the  payment  of  damages  for  acts  done  in  their  official 
capacity."  ^  "Every  act  of  public  authority,  no  matter  by 
whom  or  against  whom  it  is  directed,  is  liable  to  be  called  in 
question  before  an  ordinary  tribunal,  and  there  is  no  other 
means  by  which  its  legalitv  can  be  questioned  or  estab- 
lished." ' 

Nevertheless,  both  in  England  and  America,  there  are 
numerous  boards,  commissions,  and  authorities  which  pos- 
sess what  may  not  improperly  be  described  as  administra- 
tive jurisdiction.  They  are,  in  fact,  often  referred  to  as 
administrative  tribunals;   they  possess  the  power  of  adju- 


'  Cf.  Ashley,  "Central  and  Local  Government,"  pp.  12,  289,  306. 

*  "  Law  of  the  Constitution,"  p.  1 80.  Again  he  says,  "  The  notion  which  lies  at  the 
bottom  of  the  administrative  law  known  to  foreign  countries  that  affairs  or  disputes 
in  which  the  government  or  its  servants  are  concerned  are  beyond  the  sphere  of  the 
civil  courts  and  must  be  dealt  with  by  special  and  more  or  less  official  bodies  is  utterly 
inconsistent  with  our  traditions  and  customs."     Op.  cit.,  p.  218. 

*  Redlich  and  Hirst,  "Local  Government  in  England,"  vol.  II,  p.  365. 


ADMINISTRATIVE   COURTS  593 

dication  and  determination  in  many  cases,  and  not  infre- 
quently their  decisions  are  conclusive,  and  hence  not  sub- 
ject to  review  by  the  courts/  Although  they  are  not  a  part 
of  the  judicial  system,  their  procedure  when  hearing  and 
determining  controversies  is  often  characterized  by  the 
formalism  of  the  courts  of  justice.  A  regular  system  of 
appeal  is  often  allowed  from  one  to  another,  and  in  some 
cases  their  decisions  are  published  and  cited  as  prece- 
dents.^ In  England  examples  of  authorities  which  exer- 
cise a  limited  administrative  jurisdiction  are  the  Railway 
Commission,  the  Local  Government  Board,  the  Board  of 
Trade,  the  Board  of  Education,  and  the  Board  of  Agri- 
culture.^ In  the  United  States  similar  bodies  are  the  Inter- 
state Commerce  Commission,  whose  powers  have  been 
described  as  "quasi  administrative,  quasi  judicial";  the 
Pension  Office,  the  Patent  Office,  the  Land  Office,  the  Bureau 
of  Immigration,  the  office  of  Comptroller  of  the  Treasury, 
the  General  Board  of  Customs  Appraisers,  the  United  States 
Customs  Court,  and  the  Court  of  Claims.*  In  the  state 
governments  there  are  almost  countless  boards  and  com- 
missions which  possess  sim^ilar  powers.  Among  these  may 
be  mentioned  railroad  commissions,  boards  of  health, 
departments  of  education,  pure  food  commissions,  etc. 
There  is,  in  fact,  scarcely  any  department  of  the  admin- 
istrative service  in  which  controversies  involving  both 
public  and  private  rights  do  not  frequently  arise,  which 
can  be  more  wisely  determined  by  the  administration  it- 
self than  by  a  court  of  justice.     This  fact  has  been  recently 

'  As  to  the  latter  point,  see  Powell,  "  Conclusiveness  of  Administrative  Determina- 
tions in  the  Federal  Government,"  "American  Political  Science  Review,"  vol.  I,  pp. 
583-607. 

^  See  Bowman,  "American  Administrative  Tribunals,"  "Political  Science 
Quarterly,"  vol.  XXI,  pp.  607-625. 

'  Compare  Ashley,  "Central  and  Local  Government,"  pp.  16-22. 

*  See  Fairlie,  "National  Administration  of  the  United  States,"  where  the  adm.inis- 
trative  and  judicial  aspects  of  the  above-mentioned  authorities  are  discussed  in  thei- 
appropriate  places. 

POL.  SCI.  —  38 


594 


THE   JUDICIARY 


recognized  by  the  Congress  of  the  United  States  in  the  act 
creating  a  customs  court  vested  with  power  to  determine 
controversies  between  the  government  and  importers,  re- 
garding the  value  and  classification  of  imported  articles 
upon  which  a  customs  tariff  is  imposed. 

Whatever,  therefore,  may  be  said  against  the  European 
system  of  administrative  justice  and  of  administrative  law, 
with  its  somewhat  exaggerated  emphasis  upon  the  rights 
of  the  government  in  contradistinction  to  those  of  private 
individuals,  the  fact  remains  that  it  exists  in  England  and 
America,  though  in  less  developed  form;  and  the  role 
which  it  is  destined  to  play  in  the  future  is  bound  to  increase 
with  the  multiplication  of  governmental  functions  and  the 
increasing  complexity  of  the  governmental  organization. 


IV.     POWER   OF  THE   JUDICIARY   OVER  THE   ACTS   OF   THE 
LEGISLATURE 

In  every  state  there  must  be  some  authority  empowered 
to  declare  what  the  law  is  when  its  meaning  in  a  particular 
controversy  is  drawn  in  question.  Thought  is  subtler 
than  expression,  and  owing  to  the  deficiencies  and  ambigu- 
ities of  language  it  is  difftcult  to  reduce  rules  of  conduct  to 
written  form  so  as  to  convey  exactly  the  same  meaning  to 
different  minds.  The  meaning  of  the  written  law,  there- 
fore, is  frequently  a  matter  of  dispute;  and  when  parlia- 
mentary draughtsmen  are  careless  or  incompetent  and  the 
law  must  be  applied  under  conditions  and  circumstances 
which  could  never  have  been  contemplated  by  even  the 
most  imaginative  legislator,  the  possibility  of  disputes  is 
greatly  increased.^  In  such  circumstances  the  courts  are 
accustomed  not  only  to  assume  the  right  of  discovering  the 
hidden  meaning  of  the  law  but,  if  possible,  of  giving  effect 
to  the  presumable  intention  of  the  lawmaker,  even  if  this 

•  Compare  Baldwin,  "The  American  Judiciary,"  p.  Si;  Cooley,  "Constitutional 
Limitations,  '  7th  ed.,  p.  70;  and  Lieber,  "Legal  and  Political  Hermeneutics," 
P-  13- 


POWER   OF   THE   JUDICIARY  595 

does  involve  a  subordinate  power  of  law  making  and 
is  in  conflict  with  the  theory  of  the  separation  of  powers. 
Even  in  France,  where  the  doctrine  of  the  separation  of 
powers  has  been  most  emphasized,  the  Civil  Code  de- 
clares that  the  judge  who  shall  refuse  to  decide  a  case 
on  the  pretext  that  the  law  is  silent  or  obscure  or  in- 
sufficient may  be  prosecuted  for  denial  of  justice.  Eng- 
lish and  American  judges,  however,  have  always  main- 
tained that  in  such  cases  they  do  not  "make"  the  law 
but  only  "find"  it,  between  the  lines,  as  it  were.^  From 
the  very  nature  of  the  case  this  function  cannot  be  dis- 
charged by  the  legislature  in  the  numerous  individual  cases 
in  which  the  applicability  of  the  law  is  involved.^  Nor 
can  the  power  be  safely  intrusted  to  the  executive,  whose 
function  must  be  limited  to  the  enforcement  of  that  which 
the  legislature  has  enacted  and  the  courts  have  inter- 
preted. But  this  is  not  intended  to  imply  that  the  legis- 
lature  cannot   by   declaratory  acts   determine   what   the 

*  See  an  article  by  Professor  Munroe  Smith,  entitled  "  Judge-made  Constitutional 
Law,"  in  "  Van  Norden's  Magazine  "  for  1907,  p.  25.  "  Modern  courts  may  and 
habitually  do,"  says  the  German  jurist,  Windscheid,  "think  over  again  the  thought 
which  the  legislator  was  trying  to  express,"  while  the  Roman  jurists  went  even 
farther,  and  undertook  "  to  think  out  the  thought  which  the  legislator  was  trying  to 
think,"  that  is,  what  he  would  have  intended  had  he  known  what  future  conditions 
would  be. 

^  The  constitutions  of  some  of  the  American  states,  notably  those  of  Maine,  New 
Hampshire,  Massachusetts,  and  Colorado,  make  it  the  duty  of  the  supreme  court 
when  called  upon  by  the  legislature  or  the  executive  to  give  its  opinion  in  advance 
"upon  important  questions  of  law  and  upon  solemn  occasions."  By  this  means  the 
legislature  may  ascertain  beforehand  the  opinion  of  the  court  upon  the  validity  of  a 
proposed  statute  in  order  that  it  may  abstain  from  enacting  the  law  in  case  it  is  deemed 
to  be  unconstitutional.  But  in  such  cases  the  court  acts  ex  parte,  as  it  were,  and 
without  the  benefit  of  argument  at  the  bar,  and  hence  its  opinion  is  not  necessarily 
conclusive.  In  cases  where  an  adverse  opinion  is  given  in  this  manner  and  the  legis- 
lature passes  the  act  notwithstanding  the  opinion  of  the  court,  and  its  validity  is 
contested,  the  court  may  upon  full  hearing  and  in  the  light  of  the  information  brought 
out  by  the  argument  render  a  contrary  opinion.  The  Supreme  Court  of  the  United 
States,  however,  is  not  required  to  give  the  Congress  or  the  President  opinions  in 
advance,  and  it  has  uniformly  declined  to  do  so  when  requested  by  either  author- 
ity.    See  on  these  points  Cooley,  "  Constitutional  Limitations,"  pp.  72-73. 


596  THE   JUDICIARY 

meaning  of  the  statute  shall  be,  provided  the  acts  are  gen- 
eral in  character  and  prospective  in  operation/  As  to  their 
operation  in  the  past,  the  meaning  is  for  the  courts  alone 
to  determine.  This  does  not  mean  that  the  executive 
cannot  put  its  own  interpretation  upon  the  statute  and  * 
proceed  to  enforce  it  as  thus  understood  until  its  meaning 
has  been  authoritatively  declared  by  the  judiciary.  In 
both  cases  the  right  of  the  legislature  and  the  executive  is 
acknowledged  to  exist  and  indeed  is  essential  to  the  inde- 
pendence of  each  department  and  to  the  practical  opera- 
tion of  the  government  itself. 

In  all  systems  of  law  known  to  history  the  courts  by  in- 
terpretation and  construction  have  worked  out  an  extensive 
system  of  jurisprudence  popularly  described  as  "judge- 
made"  law.  Thus  the  Roman  jurists  developed  an  im- 
mense body  of  private  law  from  the  meager  fabric  of  the 
Twelve  Tables,  and  the  English  and  American  judges  have 
done  likewise  from  the  body  of  written  law,  statutory  and 
constitutional.  This  must  necessarily  happen  in  any  legal 
system  which  grows  and  expands  to  meet  the  changing 
necessities  of  society.  "Human  affairs  being  what  they 
are,"  remarks  an  eminent  publicist,  "there  must  be  a 
loophole  for  expansion  or  extension  In  some  part  of  every 
scheme  of  government;  and  If  the  constitution  Is  rigid, 
flexibility  must  be  supplied  from  the  minds  of  the  judges."  ^ 
Of  all  authorities  In  the  state  the  judiciary  is  best  adapted 
by  the  training,  habits,  and  traditions  of  its  members  to 
perform  this  high  and  delicate  function.^ 

Whether  the  judiciary  in  the  exercise  of  Its  undoubted 
right  of  interpretation,  that  is,  of  discovering  the  meaning 
Acts  of  the  of  the  written  statute  which  It  Is  called  on  to  apply,  may,  if 

Legisla-  t^t^  J>  J' 

*"^®  *  See  Cooley,  "Constitutional  Limitations,"  ch.  6,  for  a  full  discussion  of  this 

subject. 

^  Bryce,  "Studies  in  History  and  Jurisprudence,"  vol.  I,  p.  197. 
'  On  the  general  subject  of  judicial  interpretation,  see  Baldwin,  "  The  American 
Judiciary,"  ch.  6;  Cooley,  "  Constitutional  Limitations,"  ch.  4;  and  Lieber,  "Legal 
and  Political  Hermeneutics." 


POWER   OF   THE    JUDICIARY  597 

in  its  opinion  the  statute  is  inconsistent  with  some  superior 
law,  refuse  to  apply  such  a  statute  and  treat  it  as  null  and 
void,  is  a  question  which  has  been  much  mooted  by  jurists 
and  political  writers.  Outside  the  United  States  the  prac- 
tice and,  to  a  large  extent,  the  opinions  of  commentators 
have  been  adverse  to  the  assumption  of  such  a  power  on  the 
part  of  the  courts.  On  the  continent  of  Europe  the  general 
principle  prevails  that  the  lawmaking  body  itself  is  the 
only  judge  of  the  validity  of  its  acts.^ 

In  the  German  Empire  the  Reichsgericht  claims  and  has  German 
exercised  the  power  of  pronouncing  the  legislative  acts  ^^'^  *^® 
of  the  component  states  of  no  force  when  they  are  re- 
pugnant to  the  imperial  constitution  or  laws.^  But  it  has 
never  assumed  to  declare  an  imperial  statute  null  and  void 
because  of  its  real  or  supposed  inconsistency  with  the 
imperial  constitution.^  In  Germany  and  other  states  on 
the  continent  where  this  rule  prevails,  the  courts  must 
therefore  enforce  without  question  the  declared  will  of 
the  legislature,  whether  it  be  contrary  to  the  will  of  the 
state  as  embodied  in  the  constitution  or  not.  It  is  not 
their  right  to  assume  that  the  legislature,  intentionally 
or  unwittingly,  has  exceeded  its  powers;  nor  their  prerog- 
ative to  set  aside  as  invalid  what  has  been  enacted,  pre- 

•  "In  Europe,"  says  Esmein  ("Droit  constitutionnel,"  p.  431),  "and  especially 
under  the  regime  of  imperative  and  written  constitutions,  the  idea  is  well  established 
that  the  tribunals  have  no  right  to  pass  upon  the  constitutionality  of  the  laws.  When 
regularly  enacted  they  are  binding  upon  the  courts,  and  they  have  only  the  right  to 
apply  them,  not  to  judge  of  their  validity." 

^  See,  for  example,  a  decision  of  the  German  Imperial  Court  in  1887,  holding  an 
income  tax  law  of  Prussia  void  because  of  its  repugnance  to  a  provision  of  the  im- 
perial constitution.  "  Entscheidungen  in  Civilsachen,"  vol.  XIX,  p.  176.  See 
also  Laband,  "Staatsrecht  des  deutschen  Reiches,"  vol.  IT,  p.  576. 

'  For  a  discussion  of  this  question  so  far  as  it  relates  to  the  German  system,  see  an 
article  by  the  writer  entitled  "The  German  Judiciary,"  in  the  " Political  Science 
Quarterly,"  vol.  XVIII,  especially  pp.  524-530,  where  citations  of  the  literature 
bearing  on  the  question  may  be  found;  see  also  Coxe,  "Judicial  Power  and  Un- 
constitutional Legislation,"  pt.  I,  ch.  9,  and  Von  Mohl,  "  LFber  die  rechtliche 
Bedeutung  verfassungswidriger  Gesetze"  in  his  "Staatsrecht,  Volkerrecht  und 
Politik,"  vol.  I,  pp.  65-95. 


598  THE  JUDICIARY 

sumably  after  careful  deliberation  and  with  full  knowledge 
of  its  own  constitutional  powers.^ 

In  France  it  does  not  appear  that  the  judiciary  has  ever 
claimed  or  exercised  the  power  of  setting  aside  legislation 
repugnant  to  the  "  lois  constitutionnelles"  of  the  repub- 
lic. "Any  one,  in  fact,"  says  Dicey,  "who  bears  in  mind 
the  respect  paid  in  France  from  the  time  of  the  Revolution 
onwards  to  the  legislation  of  de  facto  governments  and  the 
traditions  of  the  French  judicature  will  assume  with  con- 
fidence that  an  enactment  passed  through  the  Chambers, 
promulgated  by  the  President,  and  published  in  the  Bulle- 
tin des  Lois  will  be  held  valid  by  every  tribunal  throughout 
the  republic."  ^  Consequently  the  restrictions  placed  upon 
the  power  of  the  legislature  by  the  constitution  are  not 
really  laws,  since  the  courts  will  not  in  the  last  analysis 
enforce  them,  but  they  are  mere  "maxims  of  political 
morality,  which  derive  whatever  strength  they  possess  from 
being  formally  inscribed  in  the  constitution  and  from  the 
resulting  support  of  public  opinion."  ^ 

^  The  constitutions  of  the  three  small  Swiss  cantons  of  Uri,  Schweiz,  and  Unter- 
walden  allow  the  courts  to  set  aside  laws  which  are  in  conflict  with  the  constitution. 
The  constitution  of  the  Confederation,  however,  makes  it  mandatory  upon  the  federal 
tribunal  to  give  force  and  effect  to  every  law  enacted  by  the  federal  assembly  (art. 
113).  For  the  reasons  why  Switzerland  refuses  to  follow  the  American  practice,  see 
Cunningham's  "The  Swiss  Confederation,"  p.  295.  See  also  Riittiman,  "Das 
nordamerikanische  Bundesstaatsrecht,  verglichen  mit  den  politischen  Einricht- 
ungen  der  Schweiz,"  sec.  290.  The  question  was  discussed  in  the  Transvaal  just 
prior  to  the  Boer  war  (Bryce,  "Studies  in  History  and  Jurisprudence,"  vol.  I, 
p.  378).  In  his  next  inaugural  address,  says  Lowell  ("Government  of  England," 
vol.  I,  p.  7),  President  Kruger  quoted  Scripture  to  prove  that  the  principle  of  holding 
statutes  unconstitutional  was  an  invention  of  the  devil. 

^  "  Law  of  the  Constitution,"  p.  1 22  (2d  ed.). 

'  The  doctrine  that  the  legislature  is  the  judge  of  the  validity  of  its  own  acts  was 
proclaimed  by  the  Constituent  Assembly  in  1790,  when  it  declared  that  "the  tribunals 
shall  not  participate  directly  nor  indirectly  in  the  exercise  of  the  legislative  power,  nor 
interfere  with  or  suspend  the  execution  of  the  decrees  of  the  legislative  body  sanc- 
tioned by  the  king  under  pain  of  forfeiture  of  their oflBces."  This  principle,  says 
Esmein  ("Droit  constitutionnel,"  p.  437),  is  strictly  followed  in  France  to-day. 
Nevertheless  the  American  doctrine  had  able  adherents  in  France  at  the  time  of  the 
Revolution,  and  several  of  them,  notably  Dupont  de  Nemours,  Robespierre,  and 


POWER   OF   THE    JUDICIARY  599 

In  Great  Britain,  where  the  legal  omnipotence  of  Parlia-  British 
ment  is  a  recognized  principle  and  where  there  is  no  legal  P"'^**" 
distinction  between  laws  which  are  fundamental  or  con- 
stitutional and  laws  which  are  not,  the  courts,  of  course, 
have  no  power  to  judge  of  the  validity  of  an  act  of  Parlia- 
ment. Whatever  it  enacts  is  binding  upon  every  person 
and  every  authority  and  must  be  enforced  by  the  courts, 
though  it  may  clearly  overrule  the  principles  of  the  com- 
mon law  and  the  ancient  customs  of  the  realm. ^  In  the 
British  self-governing  colonies,  notably  Canada  and  Aus- 
tralia, the  American  doctrine  has  gained  a  foothold;  and 
acts  passed  by  the  local  legislatures  which  are  inconsistent 
with  acts  of  the  British  Parliament  establishing  the  colonial 
government,  or  with  acts  passed  by  the  Dominion  or  Com- 
monwealth parliaments,  are  held  by  the  courts  to  be  null 
and  void.^ 

In  the  United  States  the  doctrine  of  the  right  of  the  ju-  Early 
diciary  to  set  aside  and  refuse  to  be  bound  by  legislative  p^ctice' 
acts  which  in  its  opinion  contravene  the  supreme  law  has 
been  acted  upon  from  colonial  times  and  has  been  a  familiar 


Sieyfes,  proposed  to  insert  in  the  declaration  of  rights  a  provision  affirming  the  nullity 
of  all  laws  inconsistent  with  the  constitution.  For  an  account  of  these  various  pro- 
posals, see  Esmein,  op.  ciL,  pp.  435-436.  Note  especially  Sieyes's  proposed  jtirie 
constitutionnaire,  which  was  to  be  a  body  of  representatives  empowered  to  decide 
upon  the  validity  of  acts  alleged  to  be  in  conflict  with  the  constitution.  On  March 
16,  1894,  M.  Naquet,  in  the  French  Chamber  of  Deputies,  made  a  spirited  defence 
of  the  American  doctrine  and  pleaded  for  its  introduction  into  France.  The  French 
practice  also  prevails  in  Belgium  (see  Thomissen,  "Le  Constitution  Beige,"  2d  ed., 
p.  33)  and  in  Italy  (see  Palma,  "Corso  di  Diritto  constituzionale,"  vol.  II,  p.  546. 

*  This,  however,  was  questioned  by  Coke,  who  asserted  that  an  act  of  Parliament 
"against  common  right  and  reason  could  be  adjuged  void  at  common  law  "  (8  Coke 
114),  and  is  denied  by  Hearn  ("  Government  of  England,"  pp.  37-40).  On  the 
whole  question  see  Dicey's  "Law  of  the  Constitution,"  especially  lect.  II,  on 
"The  Sovereignty  of  Parliament." 

*  See  Munro,  "The  Constitution  of  Canada,"  pp.  5,  219;  Moore,  "The  Common- 
wealth of  Australia,"  ch.  10,  especially  pp.  173-177;  and  Lowell,  "Government  of 
England,"  vol.  I,  p.  7.  Article  109  of  the  Australian  Commonwealth  Act  expressly 
declares  that  "when  a  law  of  a  state  is  inconsistent  with  a  lav;  of  the  commonwealth, 
the  latter  shall  prevail  and  the  former  shall  to  the  extent  of  the  inconsistency  be 
invalid." 


6oo  THE   JUDICIARY 

one  in  American  jurisprudence.^  As  early  as  1780  the 
highest  court  of  New  Jersey  laid  down  the  doctrine  and 
acted  upon  it  in  refusing  to  enforce  an  act  of  the  state 
legislature.^  Six  years  later  the  principle  was  announced 
and  followed  by  the  highest  court  of  Rhode  Island  in  a 
noted  case,^  and  shortly  thereafter  by  the  courts  of  North 
Carolina  and  Virginia.  Neither  the  federal  constitution 
nor  any  of  the  state  constitutions  have  expressly  recog- 
nized or  sanctioned  the  principle;  yet  it  has  always  been 
considered  a  part  of  state  and  federal  jurisprudence,  and 
both  the  state  and  federal  courts  have  without  exception 
acted  in  accordance  therewith,  and  their  action  has  received 
the  general  acquiescence  of  the  people.*  Indeed,  as  Dicey 
observes,  it  is  considered  not  only  the  right,  but  the  duty,  of 
every  judge  in  the  United  States  to  treat  as  void  any  enact- 
ment which  violates  the  constitution.^     It  was  asserted  to 

'  In  a  number  of  the  Latin  American  states,  where  the  constitution  of  the  United 
States  has  been  largely  imitated,  the  right  and  duty  of  the  courts  to  declare  acts  of  the 
legislature  null  and  void  when  they  are  repugnant  to  the  constitution  is  generally 
recognized.  See  constitution  of  Mexico,  art.  loi ;  constitution  of  Argentina,  arts. 
100,  loi;  constitution  of  Brazil,  art.  59,  sec.  i,  and  art.  60;  see  also  Esmein, 
"Droit  constitutionnel,"  p.  430;  Dairaux,  "Republique  Argentine,"  p.  45. 

*  Holmes  z'.  Walton.  For  a  history  of  this  somewhat  celebrated  case,  see  "The 
American  Historical  Review,"  vol.  IV,  pp.  456,  etc. 

^  Trevett  v.  Weeden.  For  a  history  of  this  case,  see  Arnold's  "History  of  Rhode 
Island,"  vol.  II,  ch.  24;  also  Coxe,  "Judicial  Power  and  Unconstitutional  Legisla- 
tion," pp.  234  ff.,  and  Kent,  "Commentaries,"  12th  ed.,  pp.  450-453. 

*  To  find  the  causes  of  this  idea,  says  Burgess,  "we  must  go  back  of  statutes  and 
constitutions  for  the  explanation.  .  .  .  It  is  the  consciousness  of  the  American  people 
that  law  must  rest  upon  reason  and  justice,  that  the  constitution  is  a  more  ultimate  for- 
mulation of  the  fundamental  principles  of  justice  and  reason  than  mere  legislative  acts, 
and  that  the  judiciary  is  a  better  interpreter  of  those  fundamental  principles  than  the 
legislature.  This  consciousness  has  been  awakened  and  developed  by  the  fact  that 
the  political  education  of  the  people  has  been  directed  by  the  jurists  rather  than 
by  the  warriors  and  the  priests;  and  it  is  the  reflex  influence  of  this  education  that 
upholds  and  sustains,  in  the  United  States,  the  aristocracy  of  the  robe."  "Political 
Science  and  Constitutional  Law,"  vol.  II,  p.  365. 

*"Law  of  the  Constitution,"  p.  125.  Compare  also  Cooley  (" Constitutional 
Limitations,"  p.  228),  who  observes  that  "it  is  now  generally  agreed  that  the  courts 
cannot  properly  decline  to  overrule  the  acts  of  legislature  when  it  has  exceeded  the 
authority  set  by  the  constitution  to  its  limits." 


POWER   OF   THE   JUDICIARY  6oi 

be  a  right  and  duty  by  a  federal  judge  for  the  first  time  in 
1795,  when,  in  charging  a  jury,  he  said:  "I  take  it  to  be  a 
clear  position  that  if  a  legislative  act  oppugns  a  constitu- 
tional principle,  the  former  must  give  way  and  be  rejected  on 
the  score  of  repugnance.  I  hold  it  to  be  a  position  equally 
clear  and  sound  that  in  such  a  case  it  will  be  the  duty  of  the 
court  to  adhere  to  the  constitution  and  to  declare  the  act 
null  and  void."  ^  In  1803  the  United  States  Supreme 
Court,  in  the  celebrated  case  of  Marbury  v.  Madison,^  first 
acted  upon  the  principle  by  holding  an  act  of  Congress  to  be 
inoperative  on  account  of  its  repugnance  to  a  provision  of 
the  federal  constitution.  Since  then  the  Supreme  Court  has 
set  aside  not  less  than  twenty-one  acts  of  Congress  and  over 
two  hundred  state  statutes.^  How  many  acts  of  the  state 
legislatures  have  been  pronounced  unconstitutional  by  the 
courts  of  the  states  is  not  known,  but  the  number  probably 
reaches  into  the  thousands.* 

Although,  as  has  been  said,  the  federal  constitution  Hamii- 
contains  no  provision  which  could  be  construed  as  con-  views 
ferring  upon  the  courts  such  power  over  the  acts  of  the 
legislature,  it  was  understood  by  the  statesmen  of  1787- 
1789  as  being  an  inherent  part  of  the  judicial  power 
and  needed  no  express  authority  for  its  exercise.  Ham- 
ilton, in  1788,  in  advocating  the  ratification  of  the  con- 
stitution, asserted  that  the  courts  undoubtedly  possessed 
the  power  to  pronounce  legislative  acts  void  when  con- 
trary to  the  constitution,  and  he  supported  the  right  by 
a  line  of  argument  which  has  never  been  surpassed  by 
its  clear,  convincing,  and  logical  statement.  Addressing 
himself  to  the  contention  which  had  been  advanced   that 

'  Mr.  Justice  Patterson,  in  the  case  of  Vanhorne's  Lessee  v.  Dorrance,  2  Dallas 
Reports  304. 

^  I  Cranch  137.  '  Baldwin,  "The  American  Judiciary,"  p.  106. 

*  An  examination  of  the  New  York  State  Library  Bulletin  of  Comparative  Legisla- 
tion shows  that  from  fifty  to  seventy-five  state  statutes  are  now  being  set  aside  annu- 
ally by  the  supreme  courts  of  the  states  on  the  ground  of  repugnance  to  the  state  or 
federal  constitutions. 


6o2  THE   JUDICIARY 

the  exercise  of  such  a  power  involved  the  superiority  of  the 
judiciary  over  the  legislative  power,  he  declared:  "There  is 
no  position  which  depends  on  clearer  principles  than  that 
every  act  of  a  delegated  authority,  contrary  to  the  tenor  or 
commission  under  which  it  is  exercised,  is  void.  No  legis- 
lative act,  therefore,  contrary  to  the  constitution,  can  be 
valid.  To  deny  this,  would  be  to  affirm  that  the  deputy  is 
greater  than  the  principal;  that  the  servant  is  above  his 
master;  that  the  representatives  of  the  people  are  superior 
to  the  people  themselves;  that  mere  men  acting  by  virtue 
of  powers  may  do  not  only  what  their  powers  do  not 
authorize,  but  what  they  forbid."  ^  He  pointed  out  that 
it  could  not  have  been  presumed  that  the  constitution  which 
specified  the  powers  conferred  upon  the  legislature  intended 
in  the  same  breath  to  make  the  legislature  the  judge  of 
its  own  powers  and  to  establish  the  principle  that  the  con- 
struction placed  by  it  upon  the  extent  of  those  powers 
was  to  be  conclusive  upon  the  other  departments.  "A 
constitution  is  in  fact  and  must  be  regarded,"  Hamilton 
went  on  to  say,  "as  a  fundamental  law."  It  therefore  be- 
longs to  the  judiciary  to  ascertain  its  meaning  as  well  as 
the  meaning  of  any  particular  act  proceeding  from  the  legis- 
lative body.  If  there  should  happen  to  be  a  variance  be- 
tween the  two,  that  which  has  the  superior  obligation  and 
validity  ought,  of  course,  to  be  preferred;  or,  in  other 
words,  the  constitution  ought  to  be  preferred  to  the  statute; 
the  intention  of  the  people  to  the  intention  of  their  agents. 
**  Nor  does  this  doctrine  by  any  means,"  he  said,  "suppose  a 
superiority  of  the  judicial  to  the  legislative  power.  It  only 
supposes  that  the  power  of  the  people  is  superior  to  both; 
and  that  where  the  will  of  the  legislature,  declared  in  its 
statutes,  stands  in  opposition  to  that  of  the  people,  declared 
in  the  constitution,  the  judges  ought  to  be  governed  by  the 
latter  rather  than  the  former.     They  ought  to  regulate 

»  "The  Federalist,"  No.  78  (Dawson's  ed.). 


POWER   OF  THE   JUDICIARY  603 

their  decisions  by  the  fundamental  laws,  rather  than  by 
those  which  are  not  fundamental."  ^ 

Chief  Justice  Marshall,  in  the  case  of  Marbury  v.  Madi-  Reasoning 
son,  decided  in  1803,  analyzed  the  question  in  all  its  bear-  shaiiin 
ings  and  with  the  logic  and  insight  of  which  he  was  a  JlJ^rbur^v* 
master.  Following  up  Hamilton's  argument,  he  showed  Madison 
that  the  limitations  of  a  written  constitution  could  have  no 
meaning  if  those  upon  whom  they  were  imposed  were  left 
free  to  judge  of  their  nature  and  extent.  There  must  be 
some  supreme  authority  other  than  that  which  is  limited, 
capable  of  judging  in  such  cases  and  with  power  to  compel 
respect  for  the  limitations.  Speaking  of  the  government 
of  the  United  States,  he  said:  "The  powers  of  the  legisla- 
ture are  defined  and  limited ;  and  that  these  limits  may  not 
be  mistaken  or  forgotten,  the  constitution  is  written.  To 
what  purpose  are  powers  limited,  and  to  what  purpose  is 
that  limitation  committed  to  writing,  if  these  limits  may  at 
any  time  be  passed  by  those  intended  to  be  restrained? 
The  distinction  between  a  government  with  limited  and 
unlimited  powers  is  abolished,  if  those  limits  do  not  confine 
the  persons  on  whom  they  are  imposed,  and  if  acts  pro- 
hibited and  acts  allowed  are  of  equal  obligation.  .  .  ,  The 
constitution  is  either  a  superior,  paramount  law,  unchange- 
able by  ordinary  means,  or  it  is  on  a  level  with  ordinary 
legislative  acts,  and,  like  other  acts,  is  alterable  when  the 
legislature  shall  please  to  alter  it.  If  the  former  part  of 
the  alternative  be  true,  then  a  legislative  act  contrary  to 
the  constitution  is  not  law ;  if  the  latter  part  be  true,  then 
written  constitutions  are  absurd  attempts  on  the  part  of 
the  people  to  limit  a  power,  in  its  own  nature  illimitable." 
The  great  chief  justice  concluded  that  "it  is  emphatically 
the  province  and  duty  of  the  judicial  department  to  say 
what  the  law  is.  Those  who  apply  the  rule  to  particular 
cases  must  of  necessity  expound  and  interpret  that  rule. 

*  "The  Federalist  "  (Dawson's  ed.),  p.  542. 


6o4  THE   JUDICIARY 

If  two  laws  conflict  with  each  other,  the  courts  must  decide 
on  the  operation  of  each.  So  if  a  law  be  in  opposition  to 
the  constitution, — if  both  the  law  and  the  constitution  apply 
to  a  particular  case,  so  that  the  court  must  either  decide 
that  case  conformably  to  the  law,  disregarding  the  consti- 
tution, or  conformably  to  the  constitution,  disregarding  the 
law  —  the  courts  must  determine  which  of  these  conflicting 
rules  govern  the  case.  This  is  the  very  essence  of  judicial 
duty.  If,  then,  the  courts  are  to  regard  the  constitution 
and  the  constitution  is  superior  to  any  ordinary  act  of  the 
legislature,  the  constitution  and  not  such  ordinary  act 
must  govern  the  case  to  which  they  both  apply."  ^ 

"The  courts,"  said  the  late  Judge  Cooley,  "sit  not  to 
review  or  revise  the  legislative  action,  but  to  enforce  the 
legislative  will ;  and  it  is  only  where  they  find  that  the  legis- 
lature has  failed  to  keep  within  the  constitutional  limits 

^  "  The  power  of  interpreting  the  laws,"  observes  Judge  Story,  "involves  neces- 
sarily the  function  to  ascertain  whetherthey  are  conformable  tothe  constitution  or  not ; 
and  if  not  so  conformable,  to  declare  them  void  and  inoperative.  So  the  constitution 
is  the  supreme  law  of  the  land ;  in  a  conflict  between  that  and  the  laws,  either  of 
Congress  or  of  the  state,  it  becomes  the  duty  of  the  judiciary  to  follow  that  only 
which  is  of  paramount  obligation.  This  results  from  the  very  theory  of  a  republican 
constitution  of  government;  for  otherwise  the  acts  of  the  legislature  and  executive 
would  in  effect  become  supreme  and  uncontrollable,  notwithstanding  any  prohibition 
or  limitations  contained  in  the  constitution;  and  usurpation  of  the  most  unequivocal 
and  dangerouscharacter  might  be  assumed  without  any  remedy  within  the  reach  of  the 
citizens."  See  also  Kent  (Commentaries,  vol.  I,  p.  449),  who  declares  that  "  it  be- 
longs to  the  judicial  power  as  a  matter  of  right  and  duty  to  declare  every  act  of 
the  legislature  made  in  violation  of  the  constitution,  or  of  any  provision  of  it,  null 
and  void."  "  This  great  question,"  he  concludes,  "  may  now  be  regarded  as  finally 
settled  and  I  consider  it  to  be  one  of  the  most  interesting  points  in  favor  of  constitu- 
tional liberty  and  of  the  security  of  property  in  this  country,  that  has  ever  been 
judicially  determined."  See  also  Dicey  ("Law  of  the  Constitution,"  p.  125),  who 
in  discussing  the  excellence  of  this  principle  declares  that  it  "makes  the  judges  the 
guardians  of  the  constitution  and  provides  the  only  safeguard  which  has  hitherto 
been  invented  against  unconstitutional  legislation."  For  a  scholarly  essay  by  the 
late  James  B.  Thayer  on  the  origin  and  history  of  the  American  doctrine  of  the 
right  of  the  courts  to  declare  acts  of  the  legislature  unconstitutional,  see  the  "  Har- 
vard Law  Review,"  vol.  VII;  also  printed  in  Thayer's  "Legal  Essays"  (1908). 
See  also  Rawle,  "On  the  Constitution,"  ch.  21;  and  Wilson,  "Law  Lectures," 
vol.  I,  pp.  460  et  seq. 


POWER   OF   THE    JUDICIARY  605 

that  they  are  at  liberty  to  disregard  its  action;  and  in 
doing  so  they  only  do  what  every  private  citizen  may  do 
in  respect  to  the  mandates  when  the  judges  assume  to  act 
and  to  render  judgment  or  decrees  without  jurisdiction. 
In  exercising  this  high  authority  the  judges  claim  no  judi- 
cial supremacy,  they  are  only  the  administrators  of  the 
public  will.  If  an  act  of  the  legislature  is  held  void,  it  is 
not  because  the  judges  have  any  control  over  the  legisla- 
tive power,  but  because  the  act  is  forbidden  by  the  consti- 
tution, and  because  the  will  of  the  people,  which  is  therein 
declared,  is  paramount  to  that  of  their  representatives 
expressed  in  any  law."  ^ 

This  view  of  the  matter  has  been  generally  concurred  in  Conciu- 
by  American  jurists;  and  American  courts  have,  as  has  been  ^^°°^ 
said,  universally  acted  in  accordance  with  it,  though  in  the 
early  part  of  the  last  century  there  were  protests  here  and 
there,  and  in  some  cases  judges  who  assumed  the  power  of 
setting  aside  acts  of  the  legislature  were  removed  from  office 
by  impeachment  proceedings  or  by  legislative  acts  abolish- 
ing the  courts  of  which  they  were  members.^  The  excel- 
lence of  the  rule  is  now  admitted  by  nearly  all  American 
jurists  and  political  writers,  by  many  in  England,  and  by 
some  on  the  continent  of  Europe.  It  gives  to  the  judiciary 
an  importance  in  the  political  system  of  the  country  which 
it  enjoys  in  no  other  country  of  the  world.  It  makes  of 
the  governmental  system  of  the  United  States  what  a  dis- 
tinguished writer  has  described  as  an  "  aristocracy  of  the 


*  "Constitutional  Limitations,"  7th  ed.,  p.  228. 

'  For  examples  of  some  of  these  instances,  see  Baldwin,  "American  Judiciary," 
pp.  108-118.  The  judges  who  gave  the  opinion  in  the  case  of  Trevett  i*.  Weeden 
referred  to  above  were  impeached  for  refusing  to  enforce  the  statute  in  question,  but 
they  were  not  convicted.  Nevertheless,  the  legislature  refused  to  reelect  them  when 
their  terms  expired  and  supplanted  them  with  "pliant  tools  by  whose  assistance 
paper  money  was  forced  into  circulation  and  public  and  private  debts  extinguished 
by  means  of  it."  For  other  cases  of  impeachment  of  judges  for  refusing  to 
give  efifect  to  unconstitutional  statutes,  see  Cooley,  "  Constitutional  Limitations," 
pp.  229-230. 


6o6  THE   JUDICIARY 

robe."  ^  In  no  other  country  is  the  restraining  and  com- 
pelling power  of  the  judiciary  so  often  invoked,  and  no- 
where else  are  its  decisions  held  in  such  great  respect  by 
the  masses.  The  peculiar  power  of  setting  aside  the  acts  of 
the  legislature,  however,  gives  to  the  judiciary  immense 
political  influence  as  well  as  judicial  power.  This  fact  was 
dwelt  upon  by  De  Tocqueville,  who  saw  in  the  practice 
more  good  than  evil.  Nevertheless  he  said,  "  I  am  inclined 
to  believe  that  it  is  at  once  the  most  favorable  to  liberty 
as  well  as  to  public  order  and  forms  one  of  the  most  pow- 
erful barriers  which  have  ever  been  devised  against  the 
tyranny  of  political  assemblies."  ^ 

*  Burgess,  "Political  Science  and  Constitutional  Law,"  vol.  II,  p.  365. 

'  "  Democracy  in  America,"  vol.  I,  ch.  6.  The  act  of  declaring  a  legislative  act 
unconstitutional  is  a  delicate  proceeding,  and  should  be  entered  upon  by  the  courts 
with  reluctance  and  hesitation,  since  it  involves  an  overruling  of  the  deliberate  and 
matured  wall  of  a  coordinate  department  and  presupposes  that  the  legislature  has 
either  deliberately,  or  through  want  of  deliberation  and  judgment,  disregarded  the 
limitations  imposed  upon  its  authority  by  the  constitution.  The  American  courts 
have  therefore  developed  certain  rules  of  procedure  which  they  usually  follow  in  the 
performance  of  so  solemn  ^n  act.  Among  these  are  the  following:  they  will  not 
decide  an  act  to  be  unconstitutional  by  a  mere  majority  of  a  quorum,  but  will  postpone 
action  until  there  is  a  full  bench  present ;  they  will  not  decide  a  statute  to  be  uncon- 
stitutional unless  a  decision  on  the  question  of  constitutionality  is  necessary  to  the  de- 
termination of  the  cause,  but  will,  when  possible,  dispose  of  it  upon  some  other  ground ; 
they  will  not  listen  to  an  objection  raised  against  the  constitutionality  of  a  statute 
by  a  party  whose  rights  are  not  directly  involved  and  who  has,  therefore,  no  interest 
in  having  it  set  aside ;  nor  will  they  declare  a  statute  unconstitutional  solely  because 
it  is  unjust  or  oppressive  in  some  of  its  provisions,  or  because  it  violates  the  supposed 
natural  rights  of  the  citizen,  or  some  fundamental  principle  of  republican  government, 
or  the  supposed  "  spirit "  of  the  constitution.  Moreover,  they  will  annul  only  the 
objectionable  part  of  the  statute  when  the  rest  of  it  can  stand  alone  unaffected  by  the 
part  which  is  overruled.  Where  there  is  a  reasonable  doubt  as  to  the  unconstitution- 
ality of  the  statute  or  any  part  of  it,  the  doubt  will  be  resolved  in  favor  of  the  legisla- 
tive action  and  the  law  will  be  sustained.  Finally,  when  a  statute  is  declared  un- 
constitutional, it  is  treated  as  if  it  had  never  been  enacted ;  contracts  dependent 
upon  it  for  their  validity  are  of  no  force ;  rights  built  up  on  it  fall  to  the  ground ;  no 
one  can  be  punished  for  having  refused  obedience  to  it  and  it  affords  no  protection 
to  those  who  have  acted  under  it.  For  a  full  discussion  of  these  rules,  see  Cooley, 
"  Constitutional  Limitations,"  pp.  230-261. 


INDEX 


Absolutism  of  sovereignty,  250-256. 
Adams,  John,  on  the  bicameral  system,  431. 
Administrative  controversies,  585. 
Administrative  courts,  586-593. 
Administrative  power,  nature  of,  550. 
Administrative    unions,    international,    r66- 

167. 
Advisory  councils,  value  of,  525. 
Africa,  partition  of,  73. 
Age,  as  a  qualification  for  representatives, 

451- 
Aliens,  classes  of,  365. 

expulsion  of,  371. 

rights  of,  366-369. 
"AUies"  of  political  science,  50-51. 
Amendment  of  constitutions,  404  ff. 
Amnesty,  power  to  grant,  558. 
Appointment,  power  of,  551. 
Apportionment   of  members  of  the  legisla- 
ture, methods  of,  440  ff. 
Aristocracy,  as  a  form  of  government,  defi- 
nition of,   169,   170. 

as  a  form  of  state,  125. 

compared  with  oligarchy,  175,  211. 

distinction  between  democracy  and,  126. 

forms  of,  174,  211. 

merits  of,  212,  218. 

passing  of,  217. 

sham  and  artificial  types  of,  216. 

views  of  Seeley  and  Lecky  on,  214-215. 

weakness  of,  213-215. 
Aristotle,  on  classifications  of  governments, 
126. 

on  classification  of  the  pwwers  of  govern- 
ment, 411. 

on  politics  as  a  science,  18. 

on  succession  of  governmental  forms,  201. 
Associations  of  states,  1 23  ff . 
Austin,  John,  criticism  of  the  "fimdamental 
pact,"  III. 

on  sovereignty,  268-272. 

on  transition  from  the  natural  to  the  civil 
state,  106. 
Australasia,  growth  of  state  socialism  in,  310. 
Australia,  woman  suffrage  in,  509. 
Austria,  suffrage  in,  496. 

system  of  representation  in,  470. 
Austria-Hungary,  as  an  example  of  a  real 
union,  140. 

nationality  question  in,  50. 

Belgium,  cabinet  government  in,  183. 

compulsory  voting  in,  501. 

plural  voting  in,  496. 
Bicameral    system,    advantages    and    disad- 
vantages of,  431-434. 

conditions  essential  to  success  of,  439. 

criticism  of,  436. 

in  federal  states,  436. 


Bills  of  rights,  398. 

Biological  analogy,  59. 

Biological  method  of  political  science,  24. 

Blackstone,  definition  of  sovereignty,  239. 

on  natural  liberty,  107. 

on  separation  of  powers,  414,  422. 
Bluntschli,  J.  C,  definition  of  the  state by,39. 

on  classification  of  states,  134. 

on  constitution  of  upper  chambers,  437. 

on  end  of  the  state,  313. 

on  ethnic  heterogeneity,  55. 

on  extent  of  a  state's  territory,  72. 

on  forms  of  monarchy,  174. 

on  idea  and  concept  of  the  state,  85. 

on  methods  of  political  science,  21. 

on  "mLxed"  state,  135,  171. 

on  office  of  representative,  480. 

on  organic  theory,  58. 

on  representation  of  aristocratic  element, 

434- 
on  republics,  176. 
on  right  of  suffrage,  491. 
on  succession  of  governmental  forms,  203. 
on  suffrage  for  women,  514-515. 
on  theocracies,  129,  131. 
Boards,  administrative  in  the  United  States, 

593- 
Bodin,  Jean,  on  the  separation  of  powers,  412. 
Borgeaud,  Charles,  definition  of  a  constitu- 
tion, 376. 
Bossuet,  on  the  origin  of  the  state,  89. 
Boundaries,  71. 
Boutmy,  Emile,  on  English  constitution,  383, 

on  French  idea  of  a  constitution,  387. 
Brie,  S.,  on  federal  government,  232. 
British  constitution,  382. 
Brougham,  Henry  Lord,  on  aristocracy,  212, 
213,  218.  _ 

on  constitutions,  402. 

on  democracy,  228. 

on  indirect  election,  450. 

on  instruction  of  representatives,  484. 

on  modern  idea  of  representation,  479. 

on  monarchy,  208. 

on  representation  in  the  Middle  Ages,  478. 

on  representation  of   classes  and  interests, 

471- 
Brownson,  on  the  Constitution  of  the  United 

States,  389. 
Bryce,  James,   on  distinction  between  legal 
and  political  sovereignty,  241. 

on   election    of    President   of   the   United 
States,  535. 

on  federal  government,  231,  233. 

on  flexible  constitutions,  393. 

on  public  opinion,  253. 

on  the  residence  requirement  for  repre- 
sentatives, 453. 

on  written  constitutions,  388. 


607 


6o8 


INDEX 


Buckle,  Thomas,  on  excessive  legislation,  286. 

on  influence  of  climate,  77. 

on  "politics"  as  a  science,  19. 
Bureaucratic  government,  defects  of,  199. 

merits  of,  198. 

nature  of,  197. 
Burgess,  J.  W.,  definition  of  sovereignty,  239. 

on  end  of  the  state,  314. 

on  hereditary  principle,  528. 

on  idea  and  concept  of  the  state,  85. 

on  office  of  representative,  488. 

on  origin  of  the  state,  121. 

on  power  of  the  courts  to  declare  statutes 
unconstitutional,  600. 

on  province  of  political  science,  14. 

on  theocracy,  131. 
Burke,  Edmund,  on  democracy,  223. 

on  judiciary,  572. 

on  ofSce  of  representative,  481. 

on  state  as  a  partnership,  112,  325. 

Cabinet  government,  definition  of,  180. 

in  Belgium,  183. 

in  France,  184-185. 

in  Germany,  187-188. 

in  Italy,  186. 

in  republics,  189. 

nature  of,  182-183. 
Calhoun,  John  C,  on  sovereignty,  258,  260, 

262. 
Citizen,  definition  of,  330. 

distinction  between  "elector"  and,  331. 

distinction  between  "subject"  and,  332. 

rights  of  naturalized  class  of,  347-348. 
Citizensliip,    acquisition    of,    by    naturaliza- 
tion, 341-345- 

acquisition  of,  in  other  ways,  349-351. 

early  doctrine  in  United  States  concerning 
nature  of,  337. 

in  federal  states.  352-357. 

in  the  dependencies,  350. 

in  the  German  Empire,  356-357. 

interstate  rights  of,  355. 

jus  sanguinis  and  jus  soli  as  sources  of, 

loss  of,  358  ff. 

modification  oijus  soli  rule  in  United  States, 
339- 

principle  of  Fourteenth  Amendment,  338. 

principles  governing  acquisition  of,  ^33  2- 

privileges  and  immunities  of,  356. 

quaUfications  for  representatives,  451. 

treaty  provisions  relative  to,  351. 
Classification  of  governments,  criticism  of ,  1 79. 

principle  of,  169. 

suggested  principles  of,  179. 
Classification  of  state  functions,  318-320. 
Classification    of    states,    criticism    of    Aris- 
totle's, 127. 

objections   to  existing  principles    of,    128. 

principles  of,  124-125. 
Climate,  effect  of,   on  government,  institu- 
tions, and  industries,  76. 
Collegial  principle,  580. 
Communism  and  socialism  compared,  300. 
Compact  theory  of  the  state,  92  S. 

appeals  to,  96,  97, 


Compact  theory,  criticism  of,  log  flF. 

distinction    between    political    and     sociak 

compact,  94. 
history  of,  95. 
Comparative    method    of    political    science, 

26-28. 
Composite  states,  136,  139. 
Compulsory  voting,  500-501. 
Comtc,    Auguste,    on    methods   of   political 
science,  21. 
on  "politics"  as  a  science,  17. 
Concept  of  the  state,  85. 
Condominium,  258. 
Confederate  government,  196. 
Confederations,      compared      with     federal 
unions,  152. 
examples  of,  145-148. 
nature  of,  142-144. 
Conflict  courts,  590. 

Constitution,   as  an  objective  fact  and  an 
instrument  of  evidence,  375. 
definitions  of,  376-377. 
development  and  expansion  of,  402  £f. 
essentials  of,  397  ff. 
French  idea  of,  386-388. 
meaning  of  term,  373. 
of  England,  382-385,  390-391. 
"Constitutional,"  meaning  of  term  in  Eng- 
land and  America,  385-386. 
Constitutions,  advantages  and  disadvantages 
of  each  type,  392-395. 
amendment  of,  404-405. 
Anglo-American  and  French    types    com- 
pared, 382  ff. 
classification  of,  377  ff. 
classification  of,  as  flexible  and  rigid,  391. 
classification  of,  as  historical  and  a  priori, 

391- 

criticism   of   classification   as  written  and 
unwritten,  388-390. 

distinction  between  evolved  and  enacted, 
378. 

distinction     between     written     and     un- 
written, 379,  388. 

essentials  of,  397  ff. 

examples  of,  framed  by  legislative  bodies, 
380. 

granted  by  kings,  381. 

of  American  states,  400. 

of  France,  398. 

processes  of  growth  and  expansion,  402  ff. 
Continuity,  a  characteristic  of  the  state,  81. 
Contract,  freedom  of,  297. 
Controversies,  administrative,  585. 
Cooley,  T.  M.,  definition  of  a  constitution, 
376. 

on  constitutions  as  objects  of  growth,  394. 

on  jurisdiction  of  federal  and  state  courts, 

584,  585. 
on  power  of  the  courts  to  declare  statute.: 

unconstitutional,  604. 
Councils,  executive,  523-524. 

value  of,  525. 
Courts,  administrative,    586-594.     See    also 

Judiciary. 
Cumulative    method    of    voting,    463.     See 

also  Sufrage. 


INDEX 


609 


Declarations  of  rights,  398. 

Democracy,  as  a  form  of  government,  170. 

as  a  form  of  state,  125. 

conditions  essential  to  success  of,  229. 

criticism  of,  by  Lecky,  226. 

criticism  of,  by  Maine,  224. 

educational  efiects  of,  222. 

future  of,  228,  507- 

kinds  of,  175. 

new  forms  of,  230. 

no  connection  between  liberty  and,  225. 

principle  of,  219. 

pure  form  of,  229. 

vmfavorable  to  science,  literature,  and  art, 
227. 

weakness  of,  223. 
Deslandres,    on    the    historical    method    in 

political  science,  29. 
Dicey,  E.  V.,  on  administrative  courts,  588, 
589,  591,  592.  _ 

on  English  constitution,  382. 

on  federal  unions,  157. 

on  royal  prerogative,  547. 

on  weakness  of  federal  government,  234. 
Diplomatic  power  of  the  executive,  548. 
Direct  versus  indirect  election,  447  S. 
Distribution  of  the  powers  of  government, 

406  fif. 
District   ticket   method   of   choosing   repre- 
sentatives, 444-446. 
Divided  sovereignty,  theory  of,  257  3. 
Divine  theory  of  state  origin,  87  ff. 
Ducrocq,  on  the  separation  of  powers,  408. 
Duguit,  Leon,  definition  of  sovereignty,  239. 

on  constitution  of  a  second  chamber,  435. 

on    distinction    between    monarchy    and 
repubUc,  169. 

on     representation     of     professions     and 
classes,  472. 

on  separation  of  powers,  408,  422. 

Economics,  relation  of    political  science  to, 

35-37- 
Election,  direct  versus  indirect  methods    of, 

447  ff-.  533- 
Elections,  frequency  of,  456. 
Elective  versus  hereditary  governments,  180. 
Electoral  districts,  442  ff. 
Electorate,  the,  488  ff. 

sovereignty  of,  244. 

See  also  Suffrage. 
Electors,  distinguished  from  citizens,  22- 
End  of  the  state,  311  ff. 
England,  administrative  jurisdiction  in,  591. 

constitution  of,  382-383. 

courts  of,   no  power  to  declare  statutes 
unconstitutional,  599. 

early  restrictions  on  suffrage  in,  492. 

early  system  of  representation  in,  475. 

existing  restrictions  on  suffrage  in,  493. 

socialism  in,  309. 

tenure  of  judges  in,  578. 

woman  suffrage  in,  509. 
Esmein,  A.,  on  pardoning  power,  556. 

on  plural  voting,  497. 

on  power  of  the  courts  to  declare  statutes 
unconstitutional,  597. 

POL.  SCI.  —  39 


Esmein,  A.,  on  representation  of  professions 
and  interests,  473. 

on  separation  of  powers,  410,  422. 

on  suffrage  for  women,  515. 

on  veto  power,  567. 

views  on  minority  representation,  469. 
Essential  functions  of  the  state,  318. 
Essentials  of  a  written  constitution,  397  ff. 
Estates  system,  478. 

Ethnic  heterogeneity  and  homogeneity,  50  ff. 
Evarts,  William  M.,  on  expatriation,  364. 
Evolution  theory  of  origin  of  state,  120. 
Executive,  administrative  power  of,  550. 

appointing  power  of,  551. 

choice  of,  by  popular  election,  529-531. 

choice  of,  by  the  legislature,  534-536. 

classification  of  powers  of,  547. 

diplomatic  power  of,  548. 

distinction  between  actual  and  titular,  518. 

examples  of  plural  forms  of,  520. 

hereditary   principle   in   the   selection  of, 
527-528. 

indirect  election  of,  533. 

in  Switzerland,  521. 

meaning  of  the  term,  517. 

military  power  of,  554. 

nature  of  powers  of,  546. 

necessity  of  unity  in  organization  of,  519. 

objections  to  indirect  election  of,  534. 

ordinance  f)ower  of,  552. 

pardoning  power  of,  556-558. 

participation  of,  in  the  legislative  power, 
5S8. 

power  to  assemble  the  legislature,  559. 

power  to  dissolve  the  legislature,  560. 

power  to  promulgate  and  publish  the  laws, 
566-567. 

power  to  recommend   measures  of  legis- 
lation, 561-562. 

question  of  reeligibility  of,  541-546. 

relation  to  judiciary,  568-570. 

tenure  of,  537-539- 

veto  power  of,  563-565. 

views  of  Hamilton  on,  521,  533. 

views  of  Story  on,  522. 
Executive  councils,  523-524. 
Expansion  of  the  constitution,  402  ff. 
Expatriation,  act  of  March  2,  1907,  364. 

common  law  doctrine  of,  360. 

denied  by  Turkey  and  Russia,  362. 

early  American  opinion  and  practice  con- 
cerning, 361-363. 

what  constitutes,  363. 
Experimental   method   of   political    science, 
22-23. 

Federal  government,  advantages  of,  230-231. 

distribution  of  powers  in,  193. 

future  of,  234. 

nature  of,  192. 

weaknesses  of,  232-233. 
Federal  unions,  citizenship  in,  352-357. 

compared  with  confederations,  150. 

constitution  of,  157. 

essential  conditions  of,  157. 

examples  of,  148-149. 

marks  of,  149-150. 


6io 


INDEX 


Federal  unions,  organic  nature  of,  153. 

perfect  and  imperfect  forms  of,  151. 

procedure  of  organization,  156. 

status  of  comiwnent  members  of,  153-156. 
Filmer,  on  the  divine  origin  of  the  state,  8g. 
Fiscus,  the  state  as,  84. 
Fiske,  John,  on  federal  government,  231. 
Flexible  constitutions,  391-392. 
Force  theory  of  stale  origin,  119. 
Forms  of  state,  123  ff. 
Fourteenth     Amendment     and     citizenship, 

338,  352. 
France,  administrative  courts  in,  585. 

cabinet  government  in,   184-185. 

constitutions  of,  382,  398,  399. 

courts   of,    no   iwwer   to    declare   statutes 
unconstitutional,  598. 

plural  executives  in,  520. 

suffrage  in,  400,  495. 

unicameral  system  in,  428. 
Franchise,  elective  nature  of,  491. 

restrictions  on,  503. 
Freedom,   essential   to   the   development  of 
character,  282. 

interference   with,    should    be   the   excep- 
tion, 327. 
Freeman,  E.  A.,  on  division  of  sovereignty, 
260. 

on  early  representation,  475. 

on  English  constitution,  382. 

on  federal  government,  149. 
Functions  of  the  state,  classification  of,  318- 
320.  _ 

conclusions  regarding,  320. 

demand  for  extension  of,  328. 

theories  of,  274  ff. 

See  also  Slate. 

Gareis,  classification  of  states,  132. 
General   ticket   method   of   choosing   repre- 
sentatives, 444. 
Geographic  unity,  influence  of,  77. 
German  confederation,  1815-1866,  147. 
German  Empire,  citizenship  in,  356-357. 

courts    of,  powerless   to   declare   statutes 
unconstitutional,  597. 

judicial  organization  in,  582-583. 

suffrage  in,  494. 

tenure  of  judges  in,  579. 
Germany,  cabinet  government  in,  1S7-188. 
Gierke,  Otto,  on  the  state  as  a  corporation,  83. 
God,  as  the  Creator  of  the  state,  88. 
Goodnow,  F.  J.,  on  administrative  courts,  589. 

on  separation  of  powers,  409. 
Government,    an    essential    element    of    the 
state,  79. 

bureaucratic,  197-199. 

cabinet,  180  ff. 

changes  of,  no  effect  on  continuity  of  the 
state,  82. 

confederate,  196. 

federal,  192  ff. 

forms  of,  169  ff. 

hereditary  and  elective,  180. 

individualistic  and  paternal,  200. 

merits  of  aristocratic  form  of,  212. 

merits  of  federal  government,  230-232. 


Government,  merits  of  monarchical  form  of, 
205-207,   209-210. 

merits  of  popular  form  of,  219  ff. 

mixed  type  of,  171. 

not  identical  with  the  state,  171. 

popular,  199-200. 

presidential,  189  ff. 

primary  and  representative,  179. 

succession  of  forms  of,  200-204. 

test  of  a  good  form  of,  235. 

unitary,  191. 

weakness  of  federal  government,  232-233. 
Greece,  representation  in,  475. 
Green,  T.  H.,  on  compact  theory,  109. 

on  state  of  nature,  92. 
Grotius,  definition  of  sovereignty,  239. 

definition  of  the  state  {civitas),  39. 
Gumplowicz,  on  marks  of  the  state,  80. 

on  mono-national  and  poly-national  states, 
55- 

test  of  a  nation,  47. 

Hall,  W.  E.,  definition  of  a  confederation, 
142. 

on  marks  of  a  state,  39,  41. 
Hallam,  Henry,  on  office  of  representative, 

479- 
Haller,  Ludwig  von,  classification  of  states, 

132. 
Hamilton,    Alexander,    on    compensation   of 
the  judges,  580. 

on  democracy,  170. 

on  election  of  the  President  of  the  United 
States,  531,  533. 

on  executive  councils,  523. 

on  military  power  of  the  executive,  555. 

on  organization  of  executive,  521. 

on  pardoning  power,  557. 

on  power  of  appointment,  551. 

on  power  of  the  courts  to  declare  statutes 
unconstitutional,  601-602. 

on  reeligibility  of  the  executive,  544,  545. 

on  tenure  of  the  judges,  577. 

on  term  of  the  executive,  537-538. 

on  veto  power,  564,  565. 
Hanseatic  League,  146. 
Hare,  Thomas,  on  representation,  465. 
Hauriou,   on   the  essential  elements  of  the 

state,  41. 
Hegel,  conception  of  the  state,  40. 
Hereditary  versus  elective  government,  180. 
Historical  method  of  political  science,  28-29. 
Historical  theory  of  state  origin,  120  ff. 
History,  relation  of  political  science  to,  ^:i. 
Hobbes,  on  the  state  of  nature,  98,  103. 
Holland,  T.  E.,  definition  of  a  state,  39. 
Holtzendorff,  F.  von,  on  end  of  the  state,  313. 

on  ''politics"  as  a  science,   18. 
Holy  Affiance,  88. 
Holy  Roman  Empire,  146. 
Hooker,    Richard,   on   the   compact   theory, 

93.  96. 
Humboldt,  Wilhelm,   on  the  sphere  of  the 

state,  277,  282. 
Hume,  David,  on  the  divine  theory,  91. 
Hungary,  constitution  of,  389. 

suffrage  in,  496. 


INDEX 


6n 


Huxley,  Thomas,  on  end  of  the  state,  315. 

on  individualism,  275. 

on  political  science,  18. 

on  right  of  the  individual,  297. 

on  state  interference,  323. 
Hyslop,  James,  on  democracy,  225. 

Idea  of  the  state,  85. 
Illinois,  minority  representation  in,  464. 
Inalienability  of  the  state,  249. 
Indirect  election,  448-449,  533  ff- 
Individual,   the,    interests   of,    not   separate 
from  those  of  society,  292. 
not  the  best  judge  of  his  own  interests,  293. 
Individualism  as  a  political  doctrine,  276. 

argument  for,  284  ff. 
IndividuaUstic  versus    paternal  government, 

200. 
Individualistic    theory    of    state    functions, 
274  ff. 
criticism  of,  289  ff. 
Indivisibility  of  sovereignty,  257  ff. 
Instruction,    of    members    of    the    German 
Bundesrath,  487. 
of  representatives,  482-484. 
of  United  States  senators,  486. 
Interests,  representation  of,  469  ff. 
International  administrative  unions,  165-166. 
Italy,  cabinet  government  in,  186. 
constitution  of,  389. 

James  I,  on  the  theory  of  divine  right,  89. 
Jameson,  J.  A.,  on  constitutions,  392,  395. 

on  the  procedure  of  amendment,  406. 
Janet,  Paul,  definition  of  political  science,  14. 

on  perfect  state,  274. 

on  science  of  the  state,  19. 
Jefferson,  Thomas,  on  aristocracy,  217. 

on  democracy,  170-219. 

on  kings,  210. 

on  short  terms  for  judges,  572. 

on  size  of  the  state,  75. 

on  term  of  the  executive,  543. 
Jellinek,  Georg,   conception  of  a  confedera- 
tion, 142,  145. 

definition  of  sovereignty,  239. 

on  area  of  a  state's  territory,  75. 

on  distinction  between  monarchy  and  re- 
public, 169. 

on  divisions  of  political  science,  13. 

on  organic  theory  of  the  state,  57. 

on  problem  of  political  science,  15. 

on  republics,  177. 
Judge-made  law,  596. 
Judges,   appointment  by  the  executive,  575. 

appointment  by  the  legislature,  573. 

compensation  of,  580. 

compulsory  retirement  of,  579. 

of  administrative  courts,  587. 

popular  election  of,  574. 

removal  of,  578. 

tenure  of,  576,  577. 
Judiciary,     control    of    administrative    au- 
thorities by,  588. 

duty  to  interpret  meaning  of  the  law,  594- 

595- 
early  practice  of,  in  the  United  States,  599. 


Judiciary,  independence  of,  571  ff. 

influence  of,  increased  by  power  to  annul 

acts  of  the  legislature,  605. 
opinion  of  Marshall  on,  603. 
organization  of,  580  ff. 
power   of,    to   declare    statutes   unconsti- 
tutional, 596  ff. 
practice  of,  in  the  United  States,  599. 
relation  between  state  and  federal,  584. 
relation  to  the  executive,  568. 
rules  observed  by,   in  declaring  acts  un- 
constitutional, 606. 
views  of  Hamilton  on,  601. 
Juridical  method  of  political  science,  25-26. 
Juristic  conception  of  the  state,  83. 
Jus   sanguinis    and  jus   soli   as   sources   of 
citizenship,  333-337- 

Kant,  on  compact  theory,  107. 

Kent,  James,  on  bicameral  system,  432. 

on  compensation  of  judges,  580. 

on  dangers  of  popular  election  of  Presi- 
dent of  the  United  States,  529,  530. 

on  election  of  the  executive  by  the  legis- 
lature, 536. 

on  pardoning  power,   556. 

on  popular  election  of  judges,  575. 

on  power  of  the  courts  to  declare  statutes 
unconstitutional,  604. 

on  reeligibiUty  of  the  executive,  542. 

on  tenure  of  the  executive,  541. 

on  unicameral  legislatures,  429. 

on  war  power  of  the  executive,  555. 
Koran,  source  of  Mohammedan  law,  129. 

Laboulaye,  E.,  on  the  role  of  the  state,  316. 
Laissez-faire,  as  a  theory  of  state   functions, 

.274  ff- 

criticism  of,  289  ff. 

defense  of,  282  ff. 

Herbert  Spencer  on,  278  ff. 

observations    and    conclusion    concerning 
merits  of,  320-321. 

origin  of,  276. 

See  also  /ndividualism. 
Laveleye,  Emile,  on  English  aristocracy,  217. 

on  individual,  294. 

on  mission  of  the  state,  325. 

on  popular  election  of  judges,  575. 

on  socialism,  306. 

views  of,  on  suffrage,  506. 
Leacock,  Stephen,  on  the  weakness  of  fed- 
eral government,  232. 
Lecky,   W.   E.   H.,   criticism  of  democracy, 
226. 

on  aristocracy,  214. 

on  evil  of  single  chambers,  431. 

on  functions  of  government,  288. 

on  proportional  representation,  461. 

on  test  of  a  nation,  46. 

views  on  suffrage,  504-505. 
Le  Fur,  on  the  federal  state,  150. 
Legislative  department,  427  ff. 

bicameral  organization  of,  43r-434. 

constitution  of  chambers  of,  436-440. 

methods  of  apportionment  of  members  of, 
440  ff. 


6l2 


INDEX 


Legislative    department,    modes    of    choice, 
442  fif. 

qualifications  of  members  of,  453-455- 

tenure  of  members  of,  456-458. 

unicameral    orKanization    of,    428-430. 
Legislature,  assembling  and  opening  of,    559. 

participation    of,    in     the     treaty-making 
power,  549. 

relation  to  the  executive,  558  S. 
Lewis,  Sir  G.  C,  definition  of  a  constitution, 

376-  ,  .  .      . 

on  methods  of  political  mvestigation,  22. 

on  "science"  and  "art"  of  poUtics,  13-14. 

on  sovereignty  of  the  people,  245. 
Liberty,  interference  with,  327. 

nature  of,  329. 

no  connection    between    democracy    and, 
225. 

state  not  hostile  to,  291. 
Liberty  and  property  defense  league,  277. 
Lieber,  Francis,  on  contract  theory,  11 1. 

on  indirect  elections,  450. 

on  representation  in  the  Middle  Ages,  478. 

on  right  of  instruction,  481. 
Lilienfeld,  Paul,  on  the  biological  analogy,  62. 
Limitations  on  sovereignly,    250-257. 
"Limited"   vote   system   of    representation, 

462. 
"List"  system  of  voting,  466  ff. 
Locke,  John,  on  contract  theory,  94. 

on  purpose  of  government,  315. 

on  separation  of  powers,  413,  418. 

on  state  of  nature,  99,  100,  104. 
Loss  of  citizenship,  methods  of,  358  fif. 
Lowell,  A.  L.,  on  administrative  courts,  589. 

Macaulay,  Lord,  on  the  office  of  representa- 
tive, 485. 
Machiavelli,  classification  of  states,  132. 
McKechnie,  \V.  S.,  on  contract  theor>',  114. 

on  sociaUsm,  307. 

on  sovereignty,  242. 

on  term  "pwlitical  science,"  10. 
McLennan,  J.  H.,  on  the  patriarchal  theory, 

114. 
Madison,  James,  on  extent  of  a  state's  ter- 
ritorj-,  75. 

on  repubhcan  government,  176-177. 

on  separation  of  powers,  419,  421. 
Maine,   Sir  Henry,    classification  of  consti- 
tutions, 391. 

criticism  of  Austin's  theory  of  sovereignty, 
269. 

criticism  of  democracy,  224. 

criticism  of  French  constitutions,  394. 

on  aristocracy,  214. 

on  British  constitution,  390. 

on  democracy,  170. 

on  patriarchal  theory,  115. 

on  republics,  176. 

on  social  compact,  95. 

views  on  suffrage,  506. 
Mallock,  W.  H.,  on  socialism,  307. 
Marshall,   John,  on  power  of  the  courts  to 

declare  statutes  unconstitutional,  603. 
Martens,  F.,  on  sovereignty,  252. 
Matriarchal  theory  of  state  origin,  117, 


Mayflower  Compact,  109. 
Methods  of  poHtical  science,  19-30. 
Meyer,  Georg,  on  sovereignty,  264. 
Militant    versus    industrial    tyjie  of   society, 

279. 
Military  power,  the,  554-555. 
Mill,  John  Stuart,  on  aristocracy,  213. 

on  bureaucratic  government,  198. 

on  democracy,  222,  223. 

on  despotism,  207,  208. 

on  election  of  the  executive,  531,  537. 

on  extent  of  a  state's  territory,  75. 

on  function  of  the  state,  287. 

on    instruction    of    representatives,    483, 

485- 

on  methods  of  political  science,  21,  27. 

on  quahfications  for  voting,  504. 

on   representation  of  minorities,  458-459, 
461-465. 

on  separation  of  powers,  421. 

on  sphere  of  the  state,  322. 

on  suffrage  for  women,  511,  513,  516. 

on  tests  of  a  good  government,  236. 

on  value  of  second  chambers,  434. 

on  "weighted"  voting,  499. 

scheme  of  for  a  second  chamber,  435. 
Ministers,  in  the  cabinet  system,  182  ff. 
Ministry,   distinction  between  cabinet  and, 

181. 
Minorities,   representation  of,  458  ff. 
"Mixed"  governments,  135,  171. 
"Mixed  system"  of  choosing  representatives, 

447- 
Mohammed,  vicegerent  of  God,  129. 
Mohl,  Robert  von,  classification  of  "political 
sciences,"  11. 

classification  of  states,  133. 

on  end  of  the  state,  314. 

on  theocracies,  129. 
Monadnistic  theory  of  society,  56. 
Monarchy,  absolute  and  limited,  173,  206. 

as  a  form  of  government,  169. 

as  a  form  of  state,  125. 

distinction  between  republic  and,  126,  169. 

elective,  172. 

merits  of,  205-206,  209-210. 

pure  or  absolute,  126. 
Monistic  theory  of  society,  56. 
Mono-national  states,  55. 
Montesquieu,  classification  of   governments, 
178. 

classification  of  states,  132. 

definition  of  a  confederate  republic,  150. 

on  extent  of  a  state's  territory,  75. 

on  representation  of  aristocratic  elements, 

434- 

on  separation  of  powers,  413,  419. 
Mulford,    Elisha,   on   constitutional  amend- 
ments, 405. 

on  divine  theory,  90. 

Nation,  distinction  between  nationality  and. 
47- 
distinction  between  people  and,  46. 
distinction  between  state  and,  45. 
marks  of,  45-47. 
not  identical  with  state,  47. 


« 


INDEX 


613 


Nationalities,  right  of,  53. 

Nationality,  Francis  II  of  Austria  on,  56. 

influence  in  the  consolidation  of  states,  54. 

principle  of,  in  state  organization,  49. 

question  of,  in  Europe,  50. 
Naturalization,    distinction   between   deniza- 
tion and,  346. 

distinction  between   "grand"  and  "ordi- 
nary," 347. 

effect  of,  346. 

meaning  of  term,  341. 

practice  in  America  and  Europe  as  to,  333- 

345- 
Nature,  manner  of  escape  from,  102. 

state  of,  92,  97. 
Neutralized  states,  163-164. 
Norway  and  Sweden,  example  of  a  real  union, 
141. 

Office,    incompatibility   of,    with    legislative 

mandate,  455. 
Oligarchy,  compared  with  aristocracy,  211. 

nature  of,  174-175. 
Oppenheim,   L.,   on    sovereignty   and   inde- 
pendence, 81. 
Ordinance  power  of  the  executive,  552-553. 
Organic  theory  of  the  state,  57  ff. 

criticism  of,  63-65. 

Lilienfeld  on,  62. 

SchaSie  on,  62. 

Spencer  on,  60-61. 
Origin  of  the  state,  86  ff. 
Osgood,  H.  L.,  on  theocratic  influences  in 

early  New  England,  130. 
Over-government,  evils  of,  283. 

Paley,  William,  on  monarchy,  209. 

Pardons,  power  to  grant,  556. 

Parliament,  British,  sovereignty  of,  243. 

Parliamentary  republics,  189. 

Paternal  government,  200. 

Patriarchal  theory  of  state  origin,  114  ff. 

Patrimonial  states,  133. 

People,  an  essential  element  of  the  state,  65- 

68. 
Permanence,  a  mark  of  the  state,  81. 
Personal  unions,  137,  138. 
Philippines,  citizenship  in,  350. 
PhiUimore,    Sir    Robert,    definition    of    the 

state,  40. 
Plural  executives,  520-521. 

argument  in  favor  of,  526. 
Plural  voting,  496-497. 
PoUce  theory  of  state,  323. 
PoUtical  economy,  relation  to  political  sci- 

ence,  35-37- 
Political  science.     See  Science,  political. 
Politics,  various  meam'ngs  of  the  term,  7-9. 
Pollock,  Sir  F.,  on  distrust    of  government, 

295- 
on  historical  method  of  political  science,  28. 
Popular  election  of  the  executive,  529,  532. 
Popular      government,      contradistinguished 

from  bureaucratic  government,  199. 
merits  of,  219  ff. 
weakness  of,  224-227. 
Population,  as  a  basis  of  representation,  441. 


Porto  Rico,  citizenship  in,  350. 
Pradier-Fodere,  classification  of  states,  132. 

definition  of  nadon,  45. 

on  composite  states,  139. 

on  confederations,  142. 

on  mixed  governments,  171. 
Preferential  system  of  voting,  464  ff. 
Prerogative,  nature  of,  547. 
President  of   the   United   States,   immunity 
from  judicial  control,  570. 

method  of  choosing,  530-531. 
Presidential  government,  nature  of,  189-190. 
Primary  government,  179. 
Professions,   representation  of,  472. 
PromulgaUon,  nature  of,  566. 
Property,  as  a  basis  of  representation,  441. 

as  a  test  for  participation  in  government, 
216. 
Property   quahfications  for  representatives, 

454-455- 
Proportional  representation,  compared  with 
minority  representation,  461. 

objections  to,  468. 

schemes  of,  462-467. 
Protectorates,  161-162. 
Prussia,  suffrage  in,  495. 

three-class    system    of    representation    in, 
469- 
Psychological  method  of  political  science,  25. 
Publication,  a  step  in  legislation,  567. 
Pufendorf,   conception  of  the  state,  40. 

Rae,  John,  on  socialism,  306. 

on  the  functions  of  government,  288. 
Real  unions,  139-142. 
Rechtsslaat.  the,  133. 
Reeligibility  of  the  executive,  541-546. 
Rehgion,     influence    of,     among    primitive 

peoples,  91. 
Repatriation,  363. 
Representation,  basis  of,  441. 

beginnings  of,  474. 

characteristics  of,  in  the  Middle  Ages,  477. 

early  system  of,  in  England,  475. 

modem  idea  of,  478  ff. 

of  interests,  469  ff. 

of  professional  classes,  472. 

on  the  Continent,  476. 
Representation  of  minorities,  458  ff. 

cumulative  method  of,  463. 

Lecky  and  Mill  on,  461. 

"limited"  vote  scheme  of,  462. 

list  system  of,  466-467. 

objections  to,  468. 

preferential  system  of,  464-465. 
Representative  government,  170,  475  ff. 
Representatives,  character  of  office  of,  480- 
490, 

district  method,  445-446. 

duty  to  consider  opinions  of  constituents, 
484- 

general  ticket  method  of  choosing,  444. 

methods  of  apportionment  of,  440  ff. 

mixed  system,  447. 

modes  of  choice  of,  442  ff. 

new  view  of  office  of,  486. 

not  deputies  of  a  particular  class,  479, 


6i4 


INDEX 


Representatives,  not  subject  to  instructions, 

483-485. 

qualifications  of,  451-455. 
Republic,     aristocracy    and     democracy    a 
form  of,  126. 

distinction  between  monarchy  and,  i6g. 

kinds  of,  177. 

nature  of,  175-176. 
Residence,  as  a  qualification  for  representa- 
tives, 452-453. 
Restraint,  not  necessarily  an  evil,  291. 
Rigid  constitutions,  391-392. 
Ritchie,  D.  G.,  on  end  of  the  state,  315. 

on  social  contract,  109. 

on  sovereignty,  242. 
Rohmer,  classification  of  states,  127. 
Rousseau,  J.  J.,  on  area  of  a  state's  territory, 

73- 
on  aristocracy,  174,  216. 
on  biological  analogy,  59. 
on  monarchy,  207, 
on  representation,  475. 
on  state  of  nature,  loi,  105,  106. 
Russia,  denial  of  expatriation  in,  362. 

Schaffle,  Albert,  on  the  biological  analogy,  62. 
Schleiermacher,    on    classification   of    states, 
127. 

on  succession  of  governmental  forms,  202. 
Science,  political,  contributors  to   the  litera- 
ture of,  21. 

definition  and  scope,  12-19. 

diflSculties  of  study,  20.      _ 

distinction   between  political  science  and 
pohtical  philosophy,  15. 

is  there  a  political  science  ?  16-19. 

Jellinek  on  the  kinds  of,  13. 

methods  of,  19-30. 

problem  of,  33-34-  . 

relation  to  other  sciences,  30-37. 

singular  or  plural  term,  10-12. 

terminology  and  distinctions,  1-12. 
Second  chamber,  advantages  of,  431-434. 

proper  constitution  of,  437-439- 
Seeley,  J.  R.,  criticism  of  Aristotle's  classi- 
fication of  states,  127. 

on  aristocracy,  214. 

on  democracy,  170,  219. 

on  methods  of  political  science,  29-30. 

on  oligarchy,  i75-  _ 

on  states  of  antiquity,  i4-     _ 
Senators,    argument   against   instruction   of, 
488. 

right  to  instruct,  486. 
Separation  of  governmental  powers,  406  ff. 

ancient  ideas  of,  411. 

Blackstone  on,  414. 

development  of  the  principle  of,  412. 

early  American  view,  415. 

in  France,  409. 

limitations  on  the  theory,  417  ff. 

Madison  on,  419. 

meaning  of  the  theory,  424. 

Montesquieu  on,  413. 

theories  of,  407-408. 
Seydel,  definition  of  the  state,  39. 
Shaler,  N.  S.,  on  geographic  influences,  78. 


Sidgwick,  Henry,  on  administrative  courts, 

589- 

on  advantages  of  a  second  chamber,  434. 

on  democracy,  219. 

on  historical  method  in  poUtical  science,  29. 

on  sovereignty  of  parliament,  243. 

on  state  functions,  276. 

on  suffrage  for  women,  510. 

on  the  individual   as  a  judge  of  his  own 
interests,  294. 

views  on  minority  representation,  468. 

views  on  monarchy,  208. 
Simple  states,  136. 

Smith,  Adam,  doctrine  of   non-interference, 
276. 

on  natural  liberty,  280. 
Socialism,  argument  against,  304-308. 

argument  in  favor  of,  301-303. 

doctrine  of,  300. 

growth  of,  310. 

ideas  of,  impracticable,  308. 
Socialistic  theory  of  the  state,  298  S. 
Society,  theories  of,  56. 
Sociological  method  of  political  science,  23- 

24-  .    ,       . 

Sociology,    relation   of   political   science   to, 

31-32- 
Sovereignty,  attributes  of,  248-250. 

Austin's  conception  of,  268-272. 

de  facto  versus  de  jure,  245-247. 

definitions  of,  239. 

essential  mark  of   the  state,  79,  80,    238, 
265-268. 

examples  of  ambiguous  forms  of,  258. 

indivisibihty  of,  257  ff. 

in  federal  states,  262. 

in  Great  Britain,  243. 

internal  versus  external  forms  of,  264. 

legal  versjis  political,  240,  244. 

limitations  on,  244,  250-257. 

meaning  of  the  term,  238. 

titular  versus  actual,  240. 

views  of  pubhcists  on  nature  of,  261. 
Spain,  compulsorj'  voting  in,  501. 
Spencer,  Herbert,  on  the  biological  analogy, 

60. 
Sphere  of  the  state,  278  ff.,  311  ff. 
Staatenstaat,  165. 
State,  the,  ancient  conception  of,  42. 

as  fiscus,  84. 

biological  analogy  of,  59. 

boundaries  of,  71. 

classification  of  functions  of,  318-320. 

compact  theory  of,  92  ff. 

definition  of,  38-41. 

distinction  between  nation  and,  45. 

distinction    between    state    and    govern- 
ment, 43-44- 

duty  to  regulate  contracts,  326. 

duty  to  restrain  as  well  as  to  redress,  297. 

encouragement    of    literature,     art,     and 
science,  324. 

end  and  purpose  of,  31 1-3 17. 

essential  elements  of,  66  ff. 

existence  of,  unaffected  by  governmental 
changes,  82. 

"federal"  form  of,  149  ff. 


INDEX 


615 


State,  function   of,  not  merely  that  of   re- 
straint, 289. 

government  and  sovereignty,  marks  of,  79. 

idea  versus  concept  of,  85. 

inalienability  of,  249. 

instrimient  of  economic  and  social  prog- 
ress, 325. 

juristic  concept  of,  83. 

laissez-faire  theory  of,  274  ff.,  289  ff. 

limits  to  area  of,  73. 

mixed  form,  134. 

necessary  evil,  274. 

not  a  mere  partnership,  112. 

not  identical  with  government,  171. 

not  identical  with  the  nation,  47. 

not  omniscient  or  infallible,  287. 

organic  theory  of,  57  ff. 

origin  of,  86  ff. 

patriarchal  theory  of  origin,  114  ff. 

permanence  and  continuity,  marks  of,  81. 

population  necessary  to  constitute,  67. 

relation    between    area    of,    and    form    of 
government,  75. 

socialistic  theory  of,  298  ff. 

Spencer's  comparison  of,   to  a   biological 
organism,  60-61. 

territory  necessary  to,  72. 

theocratic  form,  128  ff. 

various  meanings  of  the  term,  42-43. 
State  and  federal  citizenship  compared,  353- 

354- 
State  constitutions,  400-401. 
State  interference,  presumption  against,   327. 
State  regulation,    excess   of,    condemned   by 

experience,  285-286. 
State  sociaUsm,  300,  308. 
States,  classification  of,  124-125,  132  ff. 
criticism  of  Aristotelian  classification  of,  1 27. 
criticism  of  existing   methods  of   classifi- 
cation of,  128. 
mono-national,  tendency  toward  organiza- 
tion of,  55. 
neutralized  forms  of,  163-164. 
part-sovereign  types  of,  158  ff. 
position  of,  in  federal  unions,  194-195. 
protected  forms  of,  161-162. 
Rohmer's  and  Schleiermacher's  classifica- 
tion of,  127. 
simple  and  composite  forms  of,  136. 
Stephen,  James  F.,  on  skill  in  government,  223. 
Story,  Joseph,  on  advantages  of  a  second 
chamber,  433. 
on  choice  of  the  executive  by  the  legisla- 
ture, 535. 
on  division  of  the  legislative  power,  430. 
on  energy  in  the  executive,  519. 
on  organization  of  the  executive,  522. 
on  pardoning  power,  557. 
on  plural  executives,  526. 
on  power  of  the  courts  to  declare  statutes 

unconstitutional,  604. 
on  residence    in    district    as    qualification 

for  representatives,  453. 
on  suffrage,  503,  511. 
on  term  of  the  executive,  539,  541. 
Stubbs,  WiUiam,  on  elective  monarchies,  173. 
"Subject,"  meaning  of  term,  332. 


Succession  of  governments,  200-204. 
Suffrage,  compulsory  system  of,  500-501. 

disquahfications,  503. 

early  restrictions  of,  492. 

essentials  to  success  of,  507. 

not  a  natural  right,  491. 

restrictions  in  England,  493. 

restrictions  in  the  United  States,  492. 

restrictions  on  the  Continent,  494-495. 

systems  of,  462-469,  496-499. 

theories  of  eighteenth-century,  488-489. 

views  of  Mill,  Lecky,  Maine,  and  Laveleye 
on,  504-506. 
Suffrage    for    women,     arguments    against, 
514-516. 

arguments  in  favor  of,  510-513. 

beginnings  of  movement  for,  509. 

in  England  and  the  colonies,  509. 

in  the  United  States,  510. 
Suzerain  communities,  1 59-161. 
Sweden-Norwaj',  an  example  of  a  real  union, 

141. 
Switzerland,    citizenship  in,   358. 

suffrage  in,  496. 

the  executive  in,  521. 

Tenure,  of  executive,  537-540. 

of  judges,  5767577- 

of  representatives,  456-45S. 
Territory,  acquisition  of  citizenship  through 
incorporation  of,  349-350. 

an  essential  element  of  the  state,  68. 

area  of,  a  source  of  strength  or  weakness? 
71-72. 

effect  of  changes  of,  on  government,  76. 

what  it  includes,  70. 
Test  of  a  good  government,  235. 
Theocracy,  definition  and  forms  of,  128-129. 

examples  of,  129. 

place  of,  in  the  development  of  the  state,  131. 
Theocratic  elements,   influence  of,  in  early 

societies,  130. 
Theocratic  theory  of  the  state,  90. 
Throne,  speeches  from,  562. 
Tocqueville,    de,    Alexis,    on    advantage    of 
hereditary  monarchies,  528. 

on  area  of  a  state's  territory,  75. 

on  aristocracy,  218. 

on  democracy,  233. 

on  practice  of  American  courts  in  declar- 
ing acts  of  the  legislature  unconstitu- 
tional, 606. 

on  President  of  the  United  States,  524. 

on  reelection  of  the  President,  543,  544- 
Treason,  nature  of,  557. 
Treaties,  power  of  concluding,  549. 
Treitschke,  H.,  on  aims  of  "politics,"  15. 

on  distinction  between  monarchy  and  re- 
public, 126. 

on  separation  of  powers,  409. 
Turkey,  denial  of  expatriation  in,  362. 

"Unconstitutional,"  meaning  of  term,  386. 
Unicameral  system,  427-443. 
Unions,  international,   165  S.. 

personal,  137-138. 

real,  132-142. 


6i6 


INDEX 


Unitary  government,  igi-192. 
Unitary  states,  136. 

United    States,    administrative    jurisdiction 
in,  593- 

confederation  of,  1781-1789,  146. 

constitution  of,  388-389. 

development  of  constitution  of,  403. 

judicial  organization  in,  583. 

restrictions  on  suffrage  in,  492. 

woman  suffrage  in,  510. 
Universal  suffrage,  502  ff. 
Unwritten  constitutions,  3go,  395. 

Vattel,  definition  of  the  state,  39. 
Veto,  defense  of,  565. 

power  of,  and  kinds  of,  563. 

purposes  of,  564. 
Villey,  Edmond,  on  end  of  the  state,  316. 
Voting,  compulsory  system  of,  500-501. 

cumulative  method  of,  463. 

"list"  system  of,  466. 

plural  system  of,  496-497. 

preferential  system  of,  464. 

"weighted  "  system  of,  499. 

See  also  Suffrage. 

Waitz,  classification  of  states,  138. 
War,  power  to  wage,  555. 


"  Weighted  "  system  of  voting,  499. 
Westlake,  on  the  distinction  between  sover- 
eignty and  independence,  80. 
Willoughby,  W.  W.,  on  classification  of  gov- 
ernments, 169. 
on  essential  elements  of  the  state,  41. 
Wilson,  Woodrow,  on  federal  unions,  155. 
on  legal  character  of  the  American  states, 

260. 
on  separation  of  powers,  424. 
Windschied,    on   the     function   of    the    ju- 
diciary, 595. 
Woman  suffrage,  argument  against,  514-516. 
argument  for,  510-513. 
beginnings  of,  508. 
in  England  and  the  colonies,  509. 
in  the  United  States,  510. 
Woolsey,  T.  D.,  on  forms  of  monarchy,  174. 
on  organization  of  the  executive,  519. 
on  succession  of  governmental  forms,  204. 
Written  constitutions,  379-380,  388. 
development    by    custom,    judicial    inter- 
pretation, and  formal  amendment,  403- 
404. 
essentials  of,  397  ff- 
processes  of  growth,  402. 
spread  of,  396. 
weakness  of,  394. 


GARNER'S  GOVERNMENT 
IN  THE  UNITED  STATES 

By  JAMES  W.  GARNER,  Professor  of  Political  Science, 

University  of  Illinois 
With  Special  State  Editions 


MERITS  the  special  consideration  of  teachers  in  secondary 
schools  because  in  the  first  place  it  includes  the  most 
recent  governmental  problems  of  interest  and  impor- 
tance, and  in  the  second  it  devotes  an  unusual  amount  of  space 
to  a  practical  account  of  the  workings  of  our  government. 
The  treatment,  which  is  simple  ai.d  interesting,  proceeds  from 
the  simple  to  the  most  complex,  presenting  in  turn  the  local, 
state,  and  national  forms  of  government. 
^  The  book  shows  how  our  governmental  system  has  been 
affected  by  the  direct  primary  movements,  the  initiative  and 
referendum,  the  eommission  form  of  municipal  government, 
and  new  legislation  regarding  publicity  of  campaign  expend- 
iture and  corrupt  practices  at  elections.  It  is,  however,  the 
spirit  and  actual  workings  of  our  government  that  are  em- 
phasized, rather  tkan  its  mere  mechanism,  thus  adding  to  the 
interest  of  the  student  as  well  as  to  the  value  of  the  study. 
^  The  book  is  up  to  date  in  every  respect.  Statistics  used 
are  from  the  latest  census.  It  describes  the  most  recent 
changes  in  the  organization  and  activities  of  the  national,  state, 
and  municipal  governments.  For  example  it  deals  with  the 
recent  reorganization  of  the  federal  courts,  the  establishment 
of  postal  savings  banks,  the  parcels  post  question,  the  question 
of  second  class  postal. rates,  primary  elections,  the  new  federal 
corporation  tax,  and  the  income  tax  amendment. 
^  Unusual  attention  is  devoted  to  the  important  subject  or 
citizenship,  and  to  state  and  local  governments.  Wider 
reading  among  students  is  encouraged  by  the  frequent  lists  of 
references  to  collateral  reading,  the  documentary  or  source 
materials,  the  numerous  search  questions,  etc. 


AMERICAN    BOOK    COMPANY 

(iQi)  ~~ 


NEW    MANUAL     OF    THE 

CONSTITUTION  OF  THE 

UNITED    STATES 

By    ISRAEL    WARD    ANDREWS,    D.  D.,    LL.  D. 

Revised  by  HOMER  MORRIS,  LL.D., 

of  the    Cincinnati    Bar. 


IN  the  present  edition  Andrews's  Manual  has  been  brought 
up  to  date  in  all  particulars,  but  the  utmost  care  has  been 
taken  to  keep  to  the  original  design  of  the  work.  It  gives 
a  clear  exposition  of  the  great  principles  of  the  Constitution 
with  a  summary  of  the  legislative  provisions  in  which  they 
have  been  embodied,  and  at  the  same  time  contains  the  more 
recent  interpretations  of  the  Constitution  by  the  courts  and 
the  important  statutes  calculated  to  produce  permanent  political 
effect. 

^[  The  book  grew  out  of  the  necessities  and  experiences  of 
the  class  room  and  was  the  result  of  a  somewhat  extended 
investigation  of  our  governmental  history  by  the  author. 
The  material  presented  takes  up  the  subject  in  a  comprehensive 
manner  and  covers  those  many  questions  which  otherwise 
could  be  answered  only  after  laborious  research  and  the  study 
of  scattered  volumes. 

^[  While  the  primary  object  was  to  provide  a  suitable  text- 
book adequate  to  all  the  requirements  of  the  study,  an  attempt 
has  been  made  to  adapt  the  Manual  for  consultation  and 
reference  by  the  general  public,  and  to  embody  in  the  work 
that  kind  and  that  amount  of  information  on  the  various  topics 
which  an  intelligent  citizen  would  desire  to  possess. 
^  As  the  value  of  a  work  of  this  kind  depends  in  a  large 
measure  upon  its  accuracy,  in  nearly  every  instance  the  state- 
ments touching  legislation  or  other  action  of  the  government 
have  been  taken  from  official  publications. 


AMERICAN    BOOK    COMPANY 


(188) 


ELEMENTS     OF     CIVIL 
GOVERNMENT 

By  ALEXANDER  L.  PETERMAN,  late  Principal  and 
Professor  of  Civil  Government  in  the  Normal  School 
of  the  Kentucky  State  College. 


Special  Editions  for  Arkansas,  Colorado,  Georgia,  Illinois, 
Iowa,  Kentucky,  Michigan,  Mississippi,  Nebraska,  New 
Jersey,  New  York,  Ohio,  Oregon,  Pennsylvania,  Tennessee, 
Utah  and  West  Virginia. 


SO  great  has  been  the  demand  for  this  book  that  seventeen 
special  editions  have  been  printed  for  use  in  as  many 
States.  It  aims  to  give  boys  and  girls  a  knowledge  of 
our  political  institutions ;  to  make  them  familiar  with  their 
rights  and  duties  as  citizens ;  and  to  instill  in  them  a  deeper 
love  for  their  country — in  short,  to  promote  true  American 
citizenship. 

^  The  subject  is  presented  in  a  simple,  attractive  manner, 
and  is  written  so  clearly  that  it  can  easily  be  understood  by 
children  in  the  fourth  and  fifth  years  of  school.  The  plan 
proceeds  logically  from  the  known  to  the  unknown. 
^  Part  I  beginning  with  the  home  takes  up  the  school  and 
school  district,  the  civil  district  and  the  township  or  town,  and 
then  proceeds  to  a  consideration  of  the  county,  the  municipal 
corporation,  and  finally  the  State  and  the  United  States. 
•[j  Part  II  takes  up  the  general  functions  of  government  and 
makes  the  child  acquainted  with  the  principles  of  justice,  the 
rights  and  duties  of  citizenship,  the  different  kinds  of  law  and 
the  various  courts  in  which  they  are  administered,  trial  by 
jury,  legal  proceedings,  the  importance  of  suffrage,  elections 
and  methods  of  voting,  parties,  etc.  At  the  end  of  each 
chapter  are  many  suggestive  questions. 


AMERICAN    BOOK    COMPANY 

(187) 


OUTLINES    FOR    REVIEW 
IN    HISTORY 

By  CHARLES  BERTRAM  NEWTON,  Head  of  the 
Department  of  History  in  Lawrenceville  School,  and 
EDWARD  BRYANT  TREAT,  Master  in  Lawrence- 
ville School. 


Greek  History 
Roman  History 


English  History    . 
American  History 


THESE  little  manuals  help  the  teacher  of  history  solve 
the  problem  of  bringing  out  the  subject  as  a  whole,  and 
of  so  focusing  it  as  to  make  the  picture  clear-cut  and 
vivid  in  the  pupil's  mind — in  other  words,  they  give  the 
proper  perspective  to  the  prominent  figures  and  the  smaller 
details,  the  multitude  of  memories  and  impressions  made  by 
the  text-book,  note-book,  and  class  room  work.  The  books 
are  intended  primarily  for  review,  and  especially  for  students 
preparing  for  college. 

^  These  outlines  embody  brief  summaries  in  chronological 
order  of  the  leading  facts  and  events,  and  throughout  ease  of 
reference  has  been  considered  of  prime  importance.  Except 
in  most  unusual  cases  they  should  not  be  introduced  into  the 
class  until  after  the  work  in  the  text-book  is  finished.  How- 
ever, if  the  time  or  facilities  of  the  teacher  are  greatly  limited, 
they  may  be  used  judiciously  with  the  text-book  as  an  aid  to 
clearness.  Because  they  are  not  planned  to  follow  or  accom- 
pany any  particular  text-book  on  the  subject,  references  to 
such  books  have  purposely  been  omitted. 
^  In  the  index  battles,  laws,  and  wars  are  grouped  chrono- 
logically under  those  headings,  and  also  in  regular  alphabetical 
order.  Near  the  end  of  each  volume  are  given  fifty  typical 
questions  selected  from  the  recent  examinations  set  for  admis- 
sion to  leading  colleges,  which  are  intended  for  practice  in  the 
art  of  formulating  answers. 


I 


AMERICAN     BOOK     COMPANY 


(127) 


NEW  MEDIEVAL  AND 
MODERN    HISTORY 

From  Charlemagne  to  the  Present  Day 

By  SAMUEL  BANNISTER  HARDING,  Ph.  D.,  Pro- 
fessor of  European  History,  Indiana  University. 

Based  upon  the  author's  '«  Essentials  in  Mediaeval  and  Mod- 
ern History,"  prepared  in  consultation  with  ALBERT 
BUSHNELL  HART,  LL.D.,  Professor  of  History, 
Harvard  University. 


WHILE  based  on  the  author's  previous  Essentials  in 
Mediaeval  and  Modern  History,  in  the  present  vol- 
ume the  plan  has  been  so  reorganized,  the  scope  so 
extended,  and  the  matter  so  largely  rewritten,  that  the  result 
is  practically  a  new  book.  The  present  volume  reflects  the 
suggestions  of  many  teachers  who  have  used  the  previous  work 
in  their  classes.  The  aim  of  this  book  has  been  to  increase  the 
emphasis  on  social,  industrial,  and  cultural  topics  and  to  enable 
the  student  to  understand  modern  conditions  and  tendencies. 
^[  The  narrative  is  brought  fully  up-to-date,  including  such 
recent  events  as  the  British  Parliament  Act  of  191  i,  the  Italian- 
Turkish  War,  and  the  Balkan  War,  1 9 1  2- 1 9 1  3 .  Each  topic 
is  made  definite  and  concrete,  and  such  important  subjects  as 
the  unification  of  Italy  and  the  unification  of  Germany  are 
treated  in  separate  chapters. 

^  The  teaching  apparatus  has  been  made  as  useful  as  possible 
by  the  arrangement  and  the  typography  of  the  text  and  by  the 
addition  of  chronological  tables,  lists  of  important  dates,  sug- 
gestive topics  and  questions  for  the  pupil  to  investigate,  and 
brief  directions  for  general  reading. 

^  Adequate  illustrations  and  maps  are  inserted  profusely 
throughout  the  text.  Variety  and  color  are  imparted  to  the 
narrative  by  frequent  quotations  from  the  sources,  and  by 
striking  characterizations  from  modern  works. 


AMERICAN     BOOK     COMPANY 


(129) 


WEBSTER'S    NEW    SCHOOL 
DICTIONARIES 

Based  on  the  New  International  Dictionary,  thus  conform- 
ing to  the  best  present  usage.  Three  volumes  alike  in  general 
plan,  character,  and  typography,  but  varying  in  size,  scope, 
fullness  of  treatment,  and  price.  Each  has  been  made  as  com- 
plete as  the  limitations  permit. 

ELEMENTARY-SCHOOL  DICTIONARY     . 

45,000  Words  and  Phrases.  900  Illustrations.  720  Pages.  5^x73^1ns. 
Carefully  planned  to  meet  the  needs  of  all  the  elementary 
grades  and  other  schools  in  which  etymologies  are  not  taught. 
It  contains  all  words  found  in  the  school  texts  generally  used, 
and  includes  the  technical  expressions  of  ordinary  business  and 
words  used  in  elementary  science.  Unusual  attention  is  devoted 
to  making  a  word's  meanings  clear  to  immature  minds,  especially 
by  the  use  of  illustrative  sentences  or  phrases  and  by  discriminat- 
ing synonymies.     Inflected  forms  are  given  when  irregular. 

SECONDARY-SCHOOL  DICTIONARY  .     . 

With  Thumb  Index 

70,000  Words  and  Phrases.    1, 000  Illustrations.    864Pages.    6^x8^  ins. 

Presents  the  largest  number  of  words  and  phrases  ever 
included  in  a  school  dictionary.  The  wide  scope  of  its  vocabu- 
lary, the  clearness  of  its  etymologies,  the  simplicity  and  accu- 
racy of  its  definitions,  the  nicety  of  its  synonyms,  the  illuminat- 
ing character  of  its  illustrative  examples,  and  the  helpfulness 
of  its  supplemental  tables  have  given  this  volume  a  great  vogue 
in  schools  of  all  grades. 

SHORTER  SCHOOL  DICTIONARY  .     .     . 

35,000  Words  and  Phrases.  Fully  Illustrated.  544  Pages.  5/4^7  '"s. 
In  spite  of  its  small  size  this  book  is  remarkably  complete, 
presenting  not  only  common  words  but  technical  and  scientific 
terminology  and  up-to-date  words  needed  by  elementary  pupils. 
It  is  unique  among  smaller  dictionaries  in  making  clear  gram- 
matical difficulties.      Within  its  scope  it  is  authoritadve. 


AMERICAN     BOOK     COMPANY 


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